Ahmed El Hayek v Josslyn Vasic & Anor; QBE Insurance

Supreme Court of NSW|2010-12-20|Before: Garling J

CITATION : Ahmed El Hayek v Josslyn Vasic & Anor; QBE Insurance (Australia) Limited v Wesfarmers Federation Insurance Pty Ltd [2010] NSWSC 1498

DECISION : Dismiss motion for discovery and interrogatories.

CATCHWORDS : PRACTICE AND PROCEDURE - Discovery - Proceedings for contribution for damages arising out of bodily injury - Whether the court should exercise its discretion to order discovery - Whether there are special reasons for an order for discovery. - PRACTICE AND PROCEDURE - Interrogatories - Proceedings for contribution for damages arising out of bodily injury - Whether a non-party can be ordered to answer specified interrogatories - Whether there are special reasons that justify the making of an order to answer interrogatories.

LEGISLATION CITED : Uniform Civil Procedure Rules 2005

Ahmed El Hayek v Josslyn Vasic & Anor; QBE Insurance (Australia) Limited v Wesfarmers Federal Insurance Pty Ltd [2010] NSWSC 1482 Boscolo v Secretary, Department of Social Security [1999] 90 FCR 531 El Hayek v Vasic [2010] NSWSC 634 CASES CITED : Keating v South East Sydney Illawarra Area Health Service (Supreme Court of NSW, 7 July 2006, unreported) Priest v State of New South Wales [2006] NSWSC 12 QBE Insurance (Australia) Ltd v Vasic [2010] NSWCA 166 QBE Insurance (Australia) Ltd v Wesfarmers Federation Insurance Limited [2010] NSWSC 855

2006/266976 Ahmed El Hayek (P) Josslyn Vasic (D1 & XC1) Charles Fairey (D2 & XC2) PARTIES : Ibrahim El Hayek (XD to XC)

2010/208525 QBE Insurance (Australia) Limited (P) Wesfarmers General Insurance Limited (D)

FILE NUMBER(S) : SC 2006/266976 and 2010/208525

2006/266976 D. Baran (P) A. Renshaw and J.M. Morris (D1 and D2) COUNSEL : 2010/208525 A. Renshaw and J. M. Morris(P) P.A. Horvath (D)

2006/266976 Michael Abboud & Co (P) A R Connolly & Company (D1 and D2) SOLICITORS : 2010/208525 A.R. Connolly & Co (P) DLA Phillips Fox (D)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2010/208525 QBE INSURANCE (AUSTRALIA) LIMITED v WESFARMERS FEDERATION INSURANCE PTY LTD

1 HIS HONOUR: Wesfarmers Federation Insurance Pty Ltd moves by notice of motion dated 26 November 2010 for orders requiring QBE Insurance (Australia) Limited, Mr Fairey and Ms Vasic, to give discovery of documents in nominated categories and to answer identified interrogatories. 2 The orders are opposed by QBE, Mr Fairey and Ms Vasic. 3 The plaintiff, Mr Ahmed El Hayek, appears also to oppose the orders.

The Litigation 4 The plaintiff, Mr Ahmed El Hayek, by a statement of claim filed on 2 June 2006 has brought proceedings claiming damages from Mr Fairey and Ms Vasic arising out of injuries he sustained on 4 July 2003 whilst in the course of a visit to Mulga Creek Station, Byrock, a property owned by Ms Vasic and managed by Mr Fairey. 5 Those proceedings are part heard before me having commenced to be heard on 7 June 2010. 6 Since the proceedings commenced there has been a number of interlocutory applications and a series of judgments. In order to understand the context in which the present motion falls to be considered, it is appropriate that I recount, in summary, that history. 7 The full details of what has occurred can be obtained from a reading of the various judgments. 8 The first interlocutory proceeding heard was the subject of a judgment delivered on 15 June 2010: El Hayek v Vasic [2010] NSWSC 634. In that judgment I determined that, upon the cross-claim filed by Mr Fairey and Ms Vasic against QBE, QBE was obliged to indemnify Mr Fairey and Ms Vasic under a policy of insurance for any damages which they may sustain as a consequence of the claim of Mr Ahmed El Hayek succeeding. 9 QBE sought leave to appeal against this judgment. The Court of Appeal granted leave to appeal but dismissed the appeal: QBE Insurance (Australia) Ltd v Vasic [2010] NSWCA 166. 10 On 28 June 2010, QBE commenced proceedings against Wesfarmers claiming an entitlement to contribution for any verdict or judgment in favour of Mr Ahmed El Hayek against Ms Vasic and Mr Fairey. The claim for contribution was based upon the proposition that Wesfarmers was insurer of the same risk as QBE and accordingly QBE had an entitlement to contribution. In the course of the hearing of that dispute, QBE accepted that Wesfarmers' insurance policies did not name Mr Fairey as an insured, whereas it was an agreed fact that Ms Vasic was named as the insured on the policies. 11 Accordingly, the claim for contribution proceeded but only with respect to any judgment which may be suffered by Ms Vasic. 12 On 4 August 2010, I delivered judgment with respect to that claim: QBE Insurance (Australia) Ltd v Wesfarmers Federation Insurance Limited [2010] NSWSC 855. I found that under its Farm Liability Policy, Wesfarmers was obliged to indemnify Ms Vasic with respect to the claim of Mr Ahmed El Hayek. Having made a declaration to that effect, I made the following two orders: "(2) Order that the question of whether the bodily injuries which Mr Ahmed El Hayek sustained on 4 July 2003 at Mulga Creek Station, Byrock NSW were caused by, or arose directly or indirectly from, the farming business conducted by Mrs Josslyn Vasic, be stood over for further hearing and determination concurrently with proceedings No. 2006/266976 in the Common Law Division of the Supreme Court of NSW. (3) Order that all remaining issues in these proceedings and proceedings No. 2006/266976 in the Common Law Division of the Supreme Court of NSW be heard together with the evidence in each proceeding to be evidence in the other proceeding." 13 Order (2) was made at the request of the parties to the litigation because, as I explained in paragraphs 93 to 102 of that judgment, the application of an exclusion clause in the Personal Liability Policy issued by Wesfarmers could only be finally considered once a factual issue, namely, whether the bodily injury suffered by Mr Ahmed El Hayek was one "… caused by or arising directly or indirectly from …" the farming business was heard and determined. The facts underlying that issue would form part of the principal proceedings. 14 Wesfarmers has filed an application for leave to appeal against my judgment which is fixed to be heard by the Court of Appeal on 14 April 2011. Wesfarmers has not sought a stay on the declaration or orders which I made on 6 August 2010 as a consequence of my judgment. 15 Accordingly, the proceedings (by which I mean both proceedings which I have ordered to be heard together) have been fixed for a resumption of hearing on 28 February 2011. The proceedings have continued to be case managed together, and similar orders have been made in each proceedings. 16 On 16 November 2010, QBE made an application that the Court order, in both proceedings, pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 that there be a separate determination of a number of questions which related to the relationship between Mr Fairey and Ms Vasic. 17 On 20 December 2010, I delivered judgment in which I dismissed the application: Ahmed El Hayek v Josslyn Vasic & Anor; QBE Insurance (Australia) Limited v Wesfarmers Federal Insurance Pty Ltd [2010] NSWSC 1482. 18 In that judgment I held that I was not persuaded that it was in the interests of justice to make an order that there should be a separate determination of the questions posed.

Present Notice of Motion 19 As indicated earlier, Wesfarmers now moves the Court by notice of motion of 26 October 2010 for the following orders: "1. Pursuant to rule 21.2 of the Uniform Civil Procedure Rules 2005 (NSW), each of QBE Insurance (Australia) Limited, Josslyn Vasic and Charles Fairey are to give verified discovery of documents within their possession, custody or power falling within the categories outlined in Schedule A to this Notice of Motion, and, in their lists of documents, is to identify the category of discovery under which each document is produced.

Pursuant to rule 22.1 of the Uniform Civil Procedure Rules 2005 (NSW), each of QBE Insurance (Australia) Limited, Josslyn Vasic and Charles Fairey are to answer interrogatories in the terms outlined in Schedule B to this Notice of Motion, other than interrogatories 5 and 6, which need not be answered by Josslyn Vasic.

Costs." 20 I observe that Wesfarmers filed a notice of motion in each proceeding although it is only a party to one of those proceedings, namely, 2010/208525. 21 As can be observed, Wesfarmers sought orders against QBE, Ms Vasic and Mr Fairey. 22 In support of the notice of motion, Wesfarmers relied upon a number of affidavits which established the following facts:

(a) On 4 July 2003, Mr Fairey attended at the Bourke Police Station and gave an interview to Detective Senior Constable Duncan Butcher which was electronically recorded and for which a transcript has been produced;

(b) In the course of that interview (questions 123 to 127 inclusive) Mr Fairey described himself as the manager and caretaker of the property who did not receive any payment from Ms Vasic for undertaking either or both of those roles, but had been receiving unemployment benefits "… because we've been in the drought and we haven't sort of had an income off the place, yeh ". As well, Mr Fairey told Detective Senior Constable Butcher that he had been paid either $450 or $500 by Mr Ahmed El Hayek's father to allow them to stay on the property, he had not given them a receipt for that sum of money, but he had recorded it: " … on my own books …just an income, just debit, debit book … Just a normal sort of account keeping book … ";

(c) Mr Fairey's role on the property is fully described in a statement made by him, in these terms: "3. My sister, Josslyn Vasic, bought the property 1999. Since 1999, I have lived on and managed the property. 4. Mulga Creek Station comprises approximately 42000 acres. … 6. In 1999, the property was very run down and I began to take steps to improve it by repairing fences, digging dams, and installing drainage. That work continues. 7. … when I became manager, my work on improving the property included rounding up feral goats and selling them. … 8. I have run about 200 head of sheep on the property from about 1999. Since that time a farm has also run sheep and cattle on the property under an arrangement. 9. In my early years on the property I cleared scrub from about 200 acres of land for cropping using a tractor with a blade. I have planted crops of wheat, barley, oats and canola at different times in the years that I have lived here on those 200 acres. … 11. In late 2000 I was approached by Therese, the owner of Inland Hunting, asking that we permit shooters to hunt on Mulga Creek Station … … 13. After discussions with me, my sister agreed to permit hunters to come onto the property and stay over night in the shearers quarters. … 16. I used the money paid by the shooters to stay at the property and to shoot on the property to contribute to the costs of improving the property." 23 It is convenient to also record that in the proceedings between QBE and Wesfarmers, as I describe in para 23 of my judgment of 4 August 2010, QBE and Wesfarmers agreed on a number of facts. Two of those are presently relevant, namely: "2. At the time of the incident, the property was owned by Ms Vasic and managed by Mr Fairey. 3. On 3 July 2003 Ahmed El Hayek attended the property in the company of his father, Ibrahim El Hayek, who made contact with Mr Fairey. Ibrahim El Hayek paid an amount of money to Mr Fairey for accommodation and for use of the property for the purpose of hunting." 24 There were a number of facts which were not agreed, but which by my judgment of 4 August 2010, I found. One factual finding is as follows: "85. I am satisfied that the activity upon which the plaintiff Mr Ahmed El Hayek and his father Mr Ibrahim El Hayek, were engaged at the time the fire occurred, was an activity which formed part of the farm business … being undertaken by Ms Vasic." 25 As a consequence of that finding, I held that Wesfarmers was liable to indemnify Ms Vasic under its policy. 26 I also said this: "87 Even if I had not been satisfied that the subject activity was an integral part of the farm business, the claim by Mr Ahmed El Hayek upon Ms Vasic would in my view still have been covered by the policy. This is because the personal injury sustained by Mr Ahmed El Hayek was caused by an occurrence, namely the fire in the shearers' quarters, which was " … in connection with …" the farm business." 27 Wesfarmers also relied as part of the evidence in support of the motion upon an exchange of correspondence between its solicitors DLA Phillips Fox and A.R. Connolly & Company, solicitors for QBE. 28 In a letter of 12 August 2010, from DLA Phillips Fox to A.R. Connolly & Company, a request for further and better particulars was made about the relationship between Ms Vasic and Mr Fairey. Included in that request was the following assertion: "As you know, we consider that there may be issues of fact which require determination that will affect the contribution between insurers, notwithstanding the finding of dual insurance. Such issues include whether Charles Fairey … was employed by Josslyn Vasic …, or whether Ms Vasic is otherwise liable for the acts of Mr Fairey." 29 The reply from A.R. Connolly & Company of 26 August 2010 includes these statements about the relationship between Mr Fairey and Ms Vasic: "4.1 Mr Fairey was engaged by Ms Vasic in 1999 and since that time has undertaken the duties of a manager at Mulga Creek Station. 4.2 Oral. The conversation took place between Josslyn Vasic and Charles Fairey where it was agreed that he would manage the property. 4.3 It is admitted and alleged that all material times Mr Fairey was an employee by Ms Vasic (sic). … 4.5 It is admitted and alleged that Mr Fairey was acting in the course of his employment with Ms Vasic and pursuant to the authority conferred upon him as an employee of Ms Vasic." 30 On 27 August 2010, DLA Phillips Fox requested informal discovery of documents which related to the issue of whether Mr Fairey was an employee of Ms Vasic. What DLA Philips Fox sought were financial records such as group certificates, tax returns, payroll records and the like for the financial years ended 30 June 1999 through to and including 30 June 2003. They also sought any records of instructions given by Ms Vasic to Mr Fairey and reports provided by Mr Fairey to Ms Vasic concerning the property. 31 By letter dated 2 September 2010, A.R. Connolly & Company responded in the following terms: "We are instructed that the only documents which Ms Vasic holds which fall within the scope of your request are tax returns from the years 2001 and 2003. We enclose copies of those documents." 32 Those documents demonstrate that in the year ended 30 June 2001, the property resulted in a tax loss of $17,692, and in the year ended 30 June 2003, a loss of $395. The tax returns did not include any complete statement of account. It is accordingly not possible to derive from those tax returns what the income of the property was, what the expenses were, and what was the position so far as the relationship between Mr Fairey and Ms Vasic was concerned. 33 QBE, Mr Fairey and Ms Vasic, who were respondents to Wesfarmers' motion, relied upon the evidence contained in the affidavit of Elizabeth Ramsay of 10 December 2010. In addition to the correspondence to which I have referred, that affidavit also annexed a statement given by Ms Vasic to the NSW Police Service on 8 July 2003. That statement included the following: "3. I am the owner of a property called the 'Mulga Creek Station' which is located about 1 kilometre from the township of Byrock. I have owned the property since the 7 th of February 2000. I purchased the property for $200,000. … 6. My brother Charles Fairey who is 35 resides in the homestead with his partner, Janine Bodkin. Charles has been living on the property since I purchased the property. Charles manages the property on a day-to-day basis. If there are any major decisions to be made then I am the one who makes those decisions. He is probably more of a caretaker than a manager. … 13. In December 2000, my brother and I agreed to allow shooters on the property after Inland Hunting approached my brother and asked if we would allow paying shooters onto the property. We agreed to this. … 15. Inland Hunting arranges for licensed shooters to come onto the property for as many nights as they wish. These shooters generally stay in the quarters. They use whatever facilities are in the quarters at the time. I think what happens is that the shooters pay Inland Hunting for arranging it, and then the shooters pay Charles an amount of money when they arrive on the property. I am not sure how much this is." 34 Wesfarmers also called in aid the fact that QBE sought the separate determination of questions which relate to the employment relationship of Ms Vasic and Mr Fairey, and also that the relevant QBE policy of insurance in clause 4.8 requires Ms Vasic and Mr Fairey to give all information and assistance to QBE as it may require in the defence and settlement of any claim.

Submissions of Wesfarmers 35 Ms Horvath, counsel for Wesfarmers, submitted that the application for discovery and interrogatories relates to a matter in issue in its proceedings against QBE, namely Mr Fairey's role in respect of the business operating at Mulga Creek Station at the time Mr El Hayek suffered his injuries. 36 She submitted that, although the Court's judgment of 4 August 2010 has determined that Wesfarmers was obliged to indemnify Ms Vasic with respect to the claim of Mr El Hayek, and although Wesfarmers has previously admitted that Mr Fairey managed that business, the issue as to Mr Fairey's role in that business is nonetheless one of the "remaining issues" contemplated by the Court in its orders consequent upon that judgment. She cited, as examples of questions that remain to be explored, whether or not Mr Fairey had a relationship of employment with Ms Vasic, and whether Mr Fairey had a financial arrangement with Ms Vasic that allowed him to take all the profits of the business. 37 Ms Horvath then referred to the requirement, under r 21.8 and 22.1(3) of the UCPR, for the Court to be satisfied of "special reasons" before it could order discovery or interrogatories in proceedings, as in this case, on a claim for contribution in respect of any damages arising out of bodily injury to any person. She submitted that in determining whether such "special reasons" exist, the Court should have regard to the comments of French J (as his Honour then was) in Boscolo v Secretary, Department of Social Security [1999] 90 FCR 531 at 536: "The core of the requirement for "special circumstances" or "special reasons" is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course… But that does not require that the case be extremely unusual, uncommon or exceptional." 38 She submitted that this requirement for "special reasons", in respect of both discovery and interrogatories, is satisfied on this application because of the following factors:

(a) The issue to which discovery and interrogatories are directed is a matter relevant only to the dispute between QBE and Wesfarmers, and is not really related to the principal proceedings or the injury suffered by Mr Ahmed El Hayek.

(b) There are at present no orders of the Court for QBE to serve upon Wesfarmers any evidence QBE wishes to rely upon in the principal proceedings, the hearing of which is listed to resume on 28 February 2011.

(c) The issue to which discovery and interrogatories are directed is one which Wesfarmers is entitled to test when the principal proceedings resume. It wishes to investigate that issue prior to that time, but is hindered by the current absence from its possession of direct evidence as to Mr Fairey's business dealings with Ms Vasic, his sister. Discovery and interrogatories would allow Wesfarmers to do so, and therefore offer a realistic prospect of reducing the length and cost of the proceedings when they resume, which is in the interests of the just, quick and cheap resolution of the proceedings.

Submissions of QBE, Ms Vasic and Mr Fairey 39 Mr Renshaw, leading counsel for QBE, Ms Vasic and Mr Fairey, submitted that Wesfarmers is not party to the principal proceedings involving Ms Vasic and Mr Fairey, and likewise Ms Vasic and Mr Fairey are not parties to the proceedings between QBE and Wesfarmers. In these circumstances, he submitted, there is no authority for the proposition that Wesfarmers should be entitled to interrogate those who are, in effect, strangers to its proceedings. 40 As well, he submitted that the Court should not allow Wesfarmers to interrogate QBE, because QBE has no direct knowledge of the matters the subject of the proposed interrogatories. 41 He then submitted that, in any event, the Court should not exercise its discretion to order either discovery or interrogatories for the following reasons:

(a) The orders would serve no utility because the precise nature of Mr Fairey's role in the business at Mulga Creek Station is not a matter in issue. It has already been established by the Court that the activity upon which Mr El Hayek was engaged at the time he suffered his injury was an activity that formed part of that business. As well, it has already been agreed by Wesfarmers that Mr Fairey was engaged in that business as a manager. Further investigation as to Mr Fairey's role in the business, or his financial arrangements with Ms Vasic the owner, could not detract from Wesfarmers' liability in respect of that business.

(b) Wesfarmers bears the onus of satisfying the Court that "special reasons" exist, and has sought to do so largely on the basis that it currently has difficulties in obtaining direct evidence as to Mr Fairey's role in the business. However, material that goes towards this issue, including statements given by each of Mr Fairey and Ms Vasic to the NSW Police, is already available to Wesfarmers. This is not a case in which Wesfarmers, absent discovery or interrogatories, could have access to no evidence at all in order to prepare its case. 42 Mr Baran, who appeared for the plaintiff Mr Ahmed El Hayek, adopted Mr Renshaw's submissions. Mr Baran submitted that his client had an additional reason to oppose the orders sought, namely that there was a possibility, if the orders were made, that, notwithstanding Mr Renshaw's clear statement to the contrary, Ms Vasic and Mr Fairey may seek to withdraw the admission which had been made in their defence about the status of their relationship. 43 This additional submission must be rejected. It is obviously premature. I cannot see any connection whatever between an order for discovery and interrogatories, and whether, in the event of an application to withdraw an admission or amend a defence, that application ought in the interests of justice be granted.

Discernment 44 Mr Renshaw, leading counsel for QBE, Mr Fairey and Ms Vasic indicated that it was proposed to call both Mr Fairey and Ms Vasic to give evidence at the hearing of the proceedings. He then gave an undertaking to the Court that they would be called. His undertaking was noted. 45 Each of Mr Fairey and Ms Vasic have given formal statements to the NSW Police which have been produced. As well, Mr Fairey had taken part in an electronically recorded interview with the NSW Police of which interview a transcript has been produced. Wesfarmers has copies of these documents. 46 I have also made orders of a case management kind which are designed to ensure that, if it has not already happened, then by 4pm Friday, 14 January 2011, Wesfarmers will have been served with all written evidentiary material upon which QBE proposes to rely at the hearing of the proceedings. 47 I note that QBE and Wesfarmers have agreed on the facts about Mr Fairey's position to which I have earlier referred. 48 As the submissions of the parties accepted, both of the rules in the UCPR which address discovery and interrogatories, namely, r 21.8 and r 22.1(3), require that in proceedings of this kind, the Court must be persuaded that there are special reasons for it to make an order for discovery and the answering of interrogatories. 49 The requirement for special reasons to be established is a restrictive one. It is intended to act as a limitation on the circumstances in which an order will be made. 50 Whilst it is clear that "special reasons", as a phrase, is an inexact one, capable of some elasticity in interpretation: see Keating v South East Sydney Illawarra Area Health Service (Supreme Court of NSW, 7 July 2006, unreported) at [24]-[25] per Hall J, it is necessary for an applicant for an order to show that there is something unusual or different which takes the matter out of the ordinary course: Priest v State of New South Wales [2006] NSWSC 12 at [126] to [128] per Johnson J; Keating at [24]; Boscolo at [18] per French J (as his Honour then was). 51 Typically, but not exclusively, what will take the matter "out of the ordinary" is:

(a) an inability to obtain the requisite factual material without the exercise of the discretion;

(b) that the applicant is in a position of some disability or disadvantage;

(c) the complexity of the subject matter is such that without the exercise of the discretion, real prejudice will result to the applicant;

(d) that in order to achieve the just, quick and cheap resolution of the real issues in the proceedings, the discretion should be exercised. 52 In addition, as with all questions of discovery, an issue of relevance must be satisfied, namely that the material sought to be discovered, and the answers to interrogatories will relate to a fact in issue. There are also other discretionary considerations. 53 In this application, having regard to the factual agreement between QBE and Wesfarmers, and having regard to the terms of my judgment of 4 August 2010, a real question arises as to whether there is any fact in issue about the relationship between Mr Fairey and Ms Vasic, however, I do not need to finally determine that question. 54 As well, there is no need for me to consider and express any opinion on the various submissions which were put, including the difficult question as to whether in the present circumstances Wesfarmers could interrogate Ms Vasic and Mr Fairey, even though they were not parties in one of the proceedings but were in the other. 55 I do not need to consider all of these other issues because I am satisfied that there are no facts, matters and circumstances which could be regarded as constituting "special reasons" of the kind necessary for the exercise of my discretion. 56 The facts, matters and circumstances which surround the relationship which existed between Mr Vasic and Mr Fairey leading up to and including July 2003, and the legal consequences to be derived from them are to be found in:

(a) the accounts which have been given by Ms Vasic and Mr Fairey in their interviews and statements;

(b) such evidence as they may give either in chief or in cross-examination at the resumed hearing of the proceedings;

(c) any documents which may exist such as financial records or the like, which may contain details of the financial transactions between Ms Vasic and Mr Fairey;

(d) the accounts which have been given by Mr Ahmed El Hayek and his father, about the circumstances of their dealing with Mr Fairey when they arrived at Mulga Creek Station; and

(e) such evidence as they may give about these matters at the resumed hearing of the proceedings. 57 Wesfarmers did not submit that there were any other potential sources of information. Indeed, the target of their motion was, in substance, Ms Vasic and Mr Fairey because QBE's knowledge and capacity to comply with any orders would be derivative upon the knowledge of, and assistance from, Ms Vasic and Mr Fairey. 58 It can be seen, with one exception, that Wesfarmers is already in possession of material which describes the relevant facts, matters and circumstances which I have listed above. 59 Wesfarmers has the statements of Mr Ahmed El Hayek and his father. It has the statements of Ms Vasic and Mr Fairey and Mr Fairey's police interview. The provisions of r 31.4 of the UCPR apply to these statements and so they will, without leave being granted, stand as evidence in chief of these witnesses. 60 Wesfarmers has received such financial records from Ms Vasic and Mr Fairey as are said to exist. The availability of any financial records, or other like material, if necessary, can be ensured by the issuing of a subpoena to produce the documents. 61 The only material which Wesfarmers does not presently have is the evidence which may be given in cross-examination. But in this respect, it is in no different position from any other party to proceedings of this kind before the Court. This alone would not constitute "special reasons". 62 Wesfarmers is not in a position akin to a plaintiff who is under a legal disability, nor is it in a position of a plaintiff who has no knowledge of, or means of obtaining knowledge, about the facts, matters and circumstances relevant to the issues in the proceedings. 63 There are no "special reasons" as required by the UCPR. In those circumstances, since the existence of special reasons is an essential but not sufficient basis for the exercise of the Court's discretion to make the orders sought, the orders sought cannot be made.

(1) Each notice of motion dated 26 November 2010 brought by Wesfarmers is dismissed.

(2) Wesfarmers is to pay the costs of QBE, Mr Fairey and Ms Vasic of the motion.

(3) The plaintiff, Ahmed El Hayek, is to pay his own costs of the motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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