Halpin & Ors v Lumley General Insurance Ltd

8 In their Reply the [Insured] rely upon s 56(2) of the Act and will as necessary and if appropriate, adduce evidence of what amounts the [Insurer] should pay, being what is just and equitable in the circumstances. The parties agree that that is an issue in relation to which both sides would be entitled to lead evidence for the purposes of s 56(2).

9 The chronology of these proceedings is as follows: The [Insured] commenced proceedings on 8 October 2007 by way of Statement of Claim. An Amended Statement of Claim was filed on 28 October 2008. A Defence to that Amended Statement of Claim was filed on 21 November 2008. The [Insured's] Reply was filed on 2 July 2009. Pursuant to orders of the court in relation to the service of evidence, the [Insured] have served 40 affidavits in chief. The [Insurer] has served the following evidence:

(d) Mr Chapman, a representative of the insurer. (e) Mr Heidenreich, a valuer giving his opinion as to the value of the goods; and (f) Mr Pailthorpe, a textiles expert giving his opinion on the remnants and recovered jerseys produced by the [Insured].

The [Insurer] is currently finalising the balance of evidence to be served by it and the court was advised that these affidavits would be served within seven days of the hearing of the motion."

57 In par 6 of the judgment, reproduced in the previous paragraph, Hoeben J summarises the grounds of the Insurer's allegation that the Insured provided false information to support their claim to indemnity under the Policy. The grounds are set out at some length in par 18 of the Insurer's defence, as follows: "In pursuit of payment of the amount sought in the Amended Statement of Claim by the [Insurer] the [Insured] deliberately and with intent to deceive the [Insurer]:

(a) Provided false information as to the nature and type of the goods which were stolen;

(b) Informed the [Insurer] that the goods were purchased by the [female Insured] from Blazed in Glory Pty Limited when they were not;

(c) Provided receipts to the [Insurer] purporting to substantiate the purchases made by the [female Insured] of the goods when no such purchases were made;

(d) Provided receipts to the [Insurer] purporting to substantiate the value of the goods when the goods did not have such a value;

(e) Provided a valuation report and certificates of authenticity to the [Insurer] purporting to substantiate the existence and value of the goods when they did not do so;

(f) Provided a valuation report with documents attached to the valuation report, purporting to form part of the valuation report, when such documents did not form part of the valuer's opinion and were prepared and annexed by the [male Insured];

(g) So exaggerated the value of the goods stolen as to induce the [Insurer] to pay a much more significant sum than the true value of the goods".

Paragraph 19 of the defence pleads that the Insured's conduct was fraudulent and that, accordingly, the Insurer was entitled to refuse to pay the Insured's claim. 58 The primary Judge's chronology does not include a reference to a direction made on 27 March 2009 by a Registrar of the Court, requiring the Insurer: "to serve all lay and expert affidavits, statements or reports (other than those over which it claims privilege) on or before 5 June 2009". 59 The Insurer filed its motion ([5] above) on 17 June 2009. In effect, the motion sought to modify the Registrar's order by exempting from it the affidavits and report identified by Ms Wallis. His Honour heard the motion on 6 July 2009 and, as I have noted, delivered judgment on 10 July 2009.

PRIMARY JUDGMENT 60 The primary Judge noted that the evidence the Insurer wished to hold back fell into four categories:

Category 1: an affidavit of one of the lay witnesses;

Category 2: an affidavit of the second lay witness;

Category 4: affidavits by the investigators. 61 The Insurer submitted before Hoeben J that the statement of principle in Markus applied to all four categories of evidence. The material, so it was argued, was not of a kind which could assist the Insured's case. However, the affidavits, if disclosed to the Insured, would tempt the Insured to adjust their evidence at the trial to meet the matters raised by the deponents. 62 His Honour acknowledged that the Insured were under a "considerable disadvantage" in relation to the motion. Apart from the loss assessors' reports, which were known to have been prepared, the Insured were unaware of the nature and extent of the other evidence sought to be withheld by the Insurer. His Honour said at [17] that he took "into account this very real disadvantage". 63 The primary Judge identified (at [18]) three primary submissions made by the Insured, as follows: "(a) The Markus discretion no longer exists or if it does, it only exists in a very limited and presently irrelevant circumstance.

(b) The Markus discretion has never had any application in circumstances where, as here, the [Insurer] seeking the order is raising a positive defence, namely a fraudulent claim.

(c) Even if the discretion otherwise continues, the necessary elements have not been made out by the [Insurer] and this court would not in its discretion make the orders sought, even if the elements were present." 64 In support of the first submission, the Insured argued that the Markus discretion no longer had a place in the litigation conducted under the CP Act. The Markus discretion, so it was argued, was part of the practice known as "trial by ambush". That practice was incompatible with the "cards on the table approach" to litigation embodied in ss 56-58 of the CP Act and the various rules and Practice Notes associated with these provisions. 65 The primary Judge rejected (at [32]-[33]) the Insured's first submission: "In a Markus situation there is no trial by ambush … On the contrary, one side clearly indicates to the other that it has information which will not advance that other side's case and which is of such a character that if it were disclosed to the other side, it might tempt that other side to tailor or adjust the evidence. A Markus application signals in the clearest way that such a situation exists. … The same rationale lies behind [ss 56-58 of the CP Act ]. While the sections emphasise the quick and cheap resolution of the real issues in a case, they also place emphasis upon "the just determination of the proceedings". A just result is, of course, the prime consideration in s 58. Accordingly, I see nothing inconsistent in a court deciding a Markus application in accordance with established principle and [ss 56-58]. This is because the basis for the exercise of a Markus discretion is that the interests of justice would not be served by producing documents of the necessary kind.

66 In support of the second submission, the Insured argued that the Insurer had failed to establish a proper basis for the making of the orders. It was submitted that the Markus discretion had never been exercised in favour of a party seeking to withhold evidence where that party bore an onus in respect of the evidence contained within the documents. In this case, the Insurer had the onus of establishing that the claim by the Insured had been made fraudulently. 67 The primary Judge considered (at [37]) that in a case where each side carried an onus of proof "the sort of rigid distinction sought by the [Insured] has no place". Such an approach was quite contrary to the principle underlying the exercise of the Markus discretion, which was to allow a party to hold back documents if the interests of justice so dictated. 68 In his Honour's view, the material in Categories 1-3 had been prepared specifically to challenge the Insured's case on particular issues and could not advance the Insured's case. The assessors' reports comprising the Category 4 evidence were primarily directed to the same object: "Without being specific, what they do is to identify what the authors regard as inconsistencies in the information provided by the [Insured] and to suggest lines of inquiry which should be followed. It is the following of those lines of inquiry which has produced the material which forms much of the Category 1 - 3 evidence" (at [38]). 69 The primary Judge observed (at [40]) that the difficulty faced by the Insured in relation to the third submission was that they had not seen the documents and thus could only argue hypothetically as to what the documents might contain. His Honour had, however, seen the documents. His assessment (at [41]) was that: "they fairly and squarely comprise the sort of evidence described in the authorities as coming within the Markus discretion. The evidence has been specifically prepared to challenge important parts of the [Insured's] case and the credit of [each of them]. Were the affidavits to be made available to the [Insured], there would be an inevitable risk of the [Insured] being tempted to tailor their evidence to meet this evidence. In my opinion, the elements for the exercise of the discretion have been made out by the [Insurer]".

70 His Honour considered (at [43]) that the: "question of whether the withholding of these affidavits will lengthen the trial and discourage settlement is at best equivocal. On the [Insurer's] case the [Insured] have been dishonest and if this evidence is produced to them that dishonesty will lead to their claim being adjusted to meet it. This would certainly not shorten the trial or promote settlement. On the other hand, if the [Insured] have been dishonest and they are aware that the [Insurer] has evidence which it believes would establish that proposition, that of itself may be a positive incentive to settlement. It follows that I have not been persuaded that as a matter of discretion the [Insurer] ought not have the order which it seeks."

SUBMISSIONS 71 The Insured contend that the primary Judge erred in holding that:

(i) the Markus discretion still exists as a matter of the practice and procedure of the Supreme Court;

(ii) the Markus discretion could apply to evidence or material relevant to a matter in respect of which the party resisting access bears the onus of proof;

(iii) the Markus discretion could apply to evidence or material relevant to a positive case to be made by the party seeking access; and

(iv) once satisfied that there was a risk of the Insured tailoring their evidence, the Markus discretion should be exercised unless the Insured could persuade his Honour to the contrary. 72 Mr Pritchard SC, who appeared with Mr Emmett for the Insured, supported the first three contentions by essentially restating the arguments put to the primary Judge. However, Mr Pritchard identified three policy reasons why the parties to litigation should serve all witness statements in advance of the trial and why the Markus discretion as applied by the primary Judge "should not exist or should be overruled". The policy reasons were:

efficiency in the listing and hearing of cases, which would be imperilled by the risk, if all evidence was not served in advance, that the trial would have to be adjourned because the party denied access to the documents required time to prepare evidence in reply;

fairness to parties and witnesses, which requires that they should know the full scope of any case to which they are required to respond; and

facilitation of settlement, the prospects for which would be enhanced if the Insured and their legal advisers knew the nature of the evidence upon which the Insurer intends to rely and if the legal advisers could assess the strength of any legitimate explanation of any apparently adverse evidence. 73 Mr Pritchard submitted that, assuming the discretion exists, a party should not be permitted to withhold material upon which it relies to make out a positive case. In this case, so he argued, the Insurer bears the onus of proving fraud under s 56(1) of the Insurance Contracts Act. It was an error for the primary Judge to allow the Insurer to withhold material supporting its fraud case without, at the very least, being satisfied that this was an exceptional case. 74 Mr Pritchard further submitted that the Markus discretion should not be used to withhold material that might be used by the deprived party in making out his or her own case. Although the Insured's representatives had not had access to the material withheld under the directions made by the primary Judge, Mr Pritchard submitted that the material would be likely to be relevant to the Insured's reliance on s 56(2) of the Insurance Contracts Act - that is, the Insured's claim that, if the claim had been made fraudulently, any fraud was "only a minimal or insignificant part of the claim". 75 Mr Pritchard next contended that the exercise of any discretion by the primary Judge miscarried because his Honour wrongly regarded the finding that there was a risk that the Insured might tailor their evidence as creating a presumption that the discretion should be exercised in favour of the Insurer. According to Mr Pritchard, his Honour should have considered other matters, such as: "● whether the material is of the unusual kind where a legitimate explanation, if one exists, is unlikely to cause a trial to be postponed; ● whether it would be fair on the relevant witness and/or party to leave any legitimate explanation to be advanced without notice in cross-examination; and

● whether the material is of such a kind that any subsequent attempt to tailor evidence would not itself be a basis for attacking the witness's credibility." 76 Mr Pritchard argued that leave to appeal should be granted because the existence and scope of the Markus discretion are important matters of general principle. If leave is granted and the appeal allowed, the Insured seek orders setting aside the directions made by the primary Judge and, in lieu thereof, directing the Insurer to serve on the Insured all the affidavit evidence on which the Insurer intends to rely.

The " Markus Discretion" 77 Some care must be exercised in using an expression such as the "Markus discretion", since it may suggest a free-standing discretion divorced in some way from the terms of the relevant legislation and rules. In Markus itself, a party applied to inspect documents produced on subpoena. Clarke J exercised the discretion he "undoubtedly" had to deny the application "in the interests of justice". 78 Clarke J did not identify the source of the discretionary power, beyond referring to the decision of the Court of Appeal in Kimberley Mineral Holdings v McEwan. In that case, the issue was whether the plaintiffs should be ordered to give inspection of discovered documents without an undertaking from each defendant, the effect of which would have been to impose confidentiality upon the documents so far as their use for any purpose other than the conduct of proceedings was concerned (at 214 [6]). Hope and Glass JJA (with whom Moffitt P agreed) held that Supreme Court Rules 1970 ("SCR"), Pt 23 r 10(1) conferred a discretion on the Court as to whether to order a party to produce a discovered document for inspection by the other party to the litigation (at 215 [11]). On that construction of r 10(1), there was no difficulty in holding that the power could be exercised so as to require appropriate confidentiality undertakings as a condition of permitting inspection of the documents (at 216 [14]). Hope and Glass JJA thought that the Court might have an inherent power to impose such a requirement even if there was some apparent inflexibility in the SCR (at 216 [14]). However, their Honours considered it unnecessary to examine the scope of any inherent power. 79 Markus concerned the inspection of subpoenaed documents, rather than discovered documents. Clarke J did not refer to SCR, Pt 37 r 10, which (at the time) provided that a party could not, except with the leave of the Court, inspect any document produced in compliance with a subpoena and not admitted into evidence. However, it is clear that Pt 37 r 10 conferred a discretion on the Court, similar to that conferred by the rule considered in Kimberley: see National Employers' Mutual General Insurance Association Ltd v Waind and Hill [1978] 1 NSWLR 372, at 383, per Glass JA (Moffit P and Hutley JA agreeing). Both Markus and Kimberley were decided before the enactment of the CP Act and before the promulgation of the rule that was the forerunner to s 56 of the CP Act: see SCR Pt 1 r 3 (introduced in 1995); cf SCR Pt 26 r 1 (empowering the Court to make directions for the "just, quick and cheap disposal of the proceedings", introduced in 1984); Supreme Court Act 1970 (NSW), s 76A (to the same effect, inserted in 1985). Subsequent Authorities 80 Markus has been referred to with approval in subsequent cases. In Ng v Goldberg (Supreme Court of New South Wales, Young J, 17 August 1993, unreported), the question was whether the plaintiffs should be granted access to documents produced on subpoena by the Law Society of New South Wales. The documents included statements made by the defendant to the Law Society in respect of which Young J held that privilege had been waived. His Honour observed that Markus suggested that: "the [principal] reason for denying access to a document which is otherwise relevant is if it would deprive a litigant of a legitimate forensic advantage. This will occur, for instance, in a case where the material only goes to the case of the person on the receiving end of the subpoena and not to making the case of the person who issued it … The kernel of the documents that fall into this category are those where the defendant has taken pains to prepare material to attack the credit of the plaintiff and had prepared films or other reports on the plaintiff's activities, which if the plaintiff were able to cite [sic] them before the trial would deprive the defendant of a legitimate advantage of testing the plaintiff's story using that material."

In the result, Young J granted the plaintiffs access to the documents. (The case went to the High Court on the issue of waiver of privilege: Goldberg v Ng [1995] HCA 39; 185 CLR 83.) 81 In Broadwater Taxation and Investment Services Pty Ltd v Hendriks (Supreme Court of New South Wales, Santow J, 9 September 1993, unreported), Santow J applied the reasoning in Markus and Ng v Goldberg. His Honour directed that the plaintiff not serve affidavits on the defendants until the conclusion of the defendants' cross-examination. As the parties accepted that Santow J had a discretion whether or not to accede to the plaintiff's submission, his Honour did not consider it necessary to identify the source of the discretionary power to direct the withholding of the plaintiff's affidavit. However, his Honour said that: "the test is whether the material would, if known in advance by the other side - being in this case material designed to test the other side's evidence - enable the other side to tailor or endeavour to tailor their evidence to meet the circumstances. This is always on the hypothesis that the other side is not genuine". 82 In Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 428, a jury found that the plaintiff had been defamed. The defendant sought to justify the imputations, which alleged criminality. The allegations depended largely on the credibility of the defendant's witnesses. Levine J declined to grant the defendant access to confidential documents produced on subpoena that related to the credibility of the allegations against the plaintiff. His Honour denied access on the ground (at [57]) that: '"any advantage to the defendant by receiving this information in advance will overwhelmingly be outweighed by the impediment its reception will constitute to the purity of the stream of evidence that normally should be given in … so serious [a] case."

Levine J recognised that the " context " of both Markus and Broadwater v Hendriks was different to the case before him. However, he considered (at [63]) that the discretion available under NEM v Waind and Hill was enlivened by the fact that the plaintiff, in effect, had been placed in the position of a defendant in a criminal trial. 83 Kon v AMP Life Ltd [2006] NSWSC 957, was similar to the present case, in that the issue was whether the defendant insurer should be relieved from a direction requiring all affidavit evidence to be served in advance of the trial. The material on which the defendant wished to rely was said to go to the plaintiff's credit. The plaintiff did not dispute that there was power to grant the dispensation. 84 In that case, Barrett J identified two main reasons for the decisions reached in Markus and Broadwater v Hendricks. The first was that the material sought to be withheld was not of a kind that could assist the other party in the formulation and presentation of its own case. The material was of such a nature that it could be of assistance only to the withholding party in meeting the case made by the deprived party and, depending on the outcome of cross-examination, might not even be used for that purpose (at [10]). The second reason was that the material, if made available, would "tend to tempt the deprived party to tailor its evidence or at least to consider doing so" (at [11]). 85 Having examined the documents, Barrett J was satisfied that both elements were present in the case before him (at [13]). His only hesitation was the possibility that disclosure of the evidence at the pre-trial stage might enhance the prospects for settlement. However, he did not consider that any real weight should be given to that possibility. The main concern was to facilitate the processes by which the plaintiff's claim was: "advanced in an orderly way, best calculated to see the issues brought before the court free from possible distortion" (at [14]). 86 Markus and the four later cases to which I have referred, with the exception of Kon v AMP (where the source of power was not explored), each raised the question of whether a party to litigation should have pre-trial access to non-privileged documents discovered by a party or produced to the Court on subpoena. In each instance, other than Kon v AMP, a specific rule of court conferred a discretion on the Court to determine whether an order for access should be made. The judgments considered the circumstances in which access might be denied, culminating in Barrett J's identification in Kon v AMP of two criteria which, if satisfied, suggest that denial of access is an appropriate exercise of the discretionary power vested in the Court.

Sources of Power 87 The present case does not involve an application to grant or deny access to documents that have been discovered by a party or produced on subpoena. The issue is whether the primary Judge erred by partially exempting the Insurer from the Registrar's direction that all lay and expert evidence and reports be served prior to the trial. His Honour's direction permits the Insurer to withhold the affidavits (including the report) identified by Ms Wallis in her affidavit. Although the direction does not say so expressly, presumably his Honour intended that the Insurer should be free to read the affidavits in its case at the trial (assuming the affidavits to be otherwise admissible), if it decided to take this course in the light of cross-examination of the Insured. 88 The primary Judge did not expressly advert to the source of the power to make the direction. Since the order does not concern access to documents produced on subpoena, the source cannot be the requirement in the rules that a party obtain the leave of the Court to inspect a document produced in response to the subpoena: see now UCPR, r 33.9(3). Similarly, since the order does not concern access to discovered documents, the source of the power cannot be the equivalent of SCR, Pt 37 r 10(1), that was discussed in Kimberley: cf UCPR, r 21.7. 89 However, the CP Act and the UCPR confer extensive powers on the court to make orders for the pre-trial management of proceedings. The two most significant for present purposes are the following: the court can give such directions as it thinks fit, whether or not inconsistent with the rules of court, for the speedy determination of the real issues between the parties, including an express power to give " such other directions with respect to the conduct of the proceedings as it considers appropriate " ( CP Act , s 61(1), (2)(c)); and the court, at any time, can give directions for the conduct of any proceedings as appear convenient for the just, quick and cheap disposal of the proceedings, including orders relating to the delivery in exchange of experts' reports, the service and filing of affidavits and the giving of evidence in the proceedings (UCPR, rr 2.1, 2.3).

Nature of the Power 90 These powers are not unlimited. The powers conferred by s 61 of the CP Act, for example, must be exercised "for the speedy determination of the real issues between the parties". (It would seem that the "real issues" are those in existence at the time the power is to be exercised: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 258 ALR 14, at 36 [71], per Gummow, Hayne, Crennan, Kiefel and Bell JJ.) Section 61 would not appear to authorise a direction that could not advance the objective of permitting the speedy determination of the true dispute between the parties. 91 The power conferred by UCPR, r 2.1 to make directions is expressed more broadly. However, the power is conditioned by the requirement that the directions be made "for the just, quick and cheap disposal of the proceedings". Rule 2.1 would not authorise, for example, an order effectively abrogating substantive rights, such as the privilege against self-incrimination: Griffin v Sogelease Australia Ltd [2003] NSWCA 158; 57 NSWLR 257, at [26], per Tobias JA (with whom Meagher and McColl JJA agreed) (a case concerned with s 76A of the Supreme Court Act, the predecessor to s 61(1) of the CP Act). 92 The Court, in exercising its power to make directions, must seek to give effect to the "overriding purpose" stated in s 56(1) of the CP Act: that is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 56(2). Moreover, s 57(2) of the CP Act requires the Act and the UCPR be construed and applied so as best to ensure the attainment of the objects set out in s 57(1). As has been seen (at [47] above) those objects, in order, are: the just determination of the proceedings;

the efficient disposal of the business of the court;

the efficient use of available judicial and administrative resources; and

the timely disposal of the proceedings at a cost affordable to the parties.

The statutory objects are reinforced by the requirement in s 58 of the CP Act that in deciding to make any order " for the management of proceedings ", the court must seek to act in accord with the " dictates of justice " , a term defined, in part, by reference to ss 56 and 57. 93 The application of the criteria laid down by ss 56-58 is not without difficulty. There is, or at least may be, a tension between the just resolution of the real issues in proceedings and the quick and cheap resolution of those issues. A reasonable opportunity to lead evidence, cross-examine witnesses and present a case (cf CP Act, s 62(4)), depending on the nature of the claim, may be very difficult to achieve quickly and cheaply. Similarly, the "just determination of the proceedings" (s 57(1)(a)) may detract from "the efficient use of available judicial … resources" (s 57(1)(c)), if the latter expression means minimising the judicial resources required to resolve a given number of cases. To some extent the tension is ameliorated by the concept of proportionality, introduced by ss 57(1)(d) and 60 of the CP Act. Nonetheless, the exercise of powers in conformity with the "overriding purpose" is likely to involve some balancing of competing objectives. 94 The CP Act does not expressly accord paramountcy to the just determination of the proceedings, although this is the first object stated in s 57(1) of the CP Act. In contrast, for example, the rule considered by the High Court in Aon Risk Services (Court Procedures Rules 2006 (ACT), r 21(1)) states that the purpose of the Rules is: "to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense."

Similarly, the Civil Procedure Rules 1998 (UK), made under the Civil Procedure Act 1997 (UK), state (r 1.1(1)) that the: "Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly".

The expression " deal with cases justly " includes, so far as practicable , the following considerations (r 1.1(2)): "(a) ensuring that the parties are on an equal footing; (b) saving expense; (c) dealing with the case in ways which are proportionate - (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly; and (e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases." 95 Whatever difficulties there may be in reconciling the objectives embodied in the overriding purpose stated in s 56(1) of the CP Act, it is clear that the court has wide powers to make directions for the conduct of proceedings, including the directions relating to the disclosure or withholding of affidavits or reports on which a party intends to rely at a hearing. It is necessary, in the exercise of such powers for the court to take into account the mandatory considerations identified in the CP Act and the UCPR. Those considerations may suggest the exercise of caution before one party is given an apparent forensic advantage by being partially exempted from a requirement to exchange affidavits and reports prior to the trial. But it is impossible to say, irrespective of the justice of the particular case or the issues at stake, that the court's powers can never be wide enough to make orders of the kind made in the present case. 96 Specifically, if the court considers that an order permitting one party to withhold affidavit or other material from the other party pending the trial is likely to assist in the speedy determination of the real issues between the parties (CP Act, s 61(1)) or is likely to advance the just, quick and cheap disposal of the proceedings (UCPR, r 2.1), it has power to make the order. Whether the order is appropriate in a particular case will depend on a number of considerations, including the application to the circumstances of the case of the criteria stated in CP Act, s 57(1) and the "dictates of justice" as defined in s 58(2).

Policy Issues and Exercise of the Power 97 The policy reasons identified by Mr Pritchard in his submissions are likely to be relevant to the exercise of the powers conferred by the CP Act or the UCPR, where one party seeks an order of the kind made in the present case. The first of the matters identified by Mr Pritchard, the risk of an adjournment of the trial, would ordinarily be a matter relevant to the "overriding purpose" stated in s 56(1) of the CP Act. The risk of an adjournment, if realised, might diminish the likelihood of a "quick and cheap resolution of the real issues". The risk might also be thought, depending on the circumstances, to jeopardise the efficient disposal of the business of the court and the efficient use of available judicial resources (ss 57(1)(b), (c), 58). 98 The second matter identified by Mr Pritchard, namely fairness to the party denied access to the material until after the trial has commenced, clearly must be taken into account before an order is made. Fairness to a party is, at the very least, important to the just resolution or determination of the proceedings (CP Act, ss 57(1)(a), 58(1); see too, s 58(2)(b)(v)). The likely impact of the order upon prospects for settlement (the third policy issue identified by Mr Pritchard) is likely to be relevant to the efficient use of available judicial resources and to the timely disposal of the proceedings (s 57(1)(b), (d)). 99 It is, however, one thing to say that these "policy" considerations may have to be taken into account in determining whether a power conferred by the CP Act or the UCPR should be exercised in a particular case. It is another to suggest that they lead to the conclusion that the court lacks power, regardless of the circumstances, to make directions authorising one party to withhold affidavits or reports from the other party until after the trial has commenced. There is nothing in the language of the relevant provisions of the CP Act or the UCPR that supports any such conclusion. 100 Mr Pritchard referred to authorities which emphasise the need for "clarity, precision and openness in the conduct of litigation" and the importance of a "cards on the table approach" which leads to the delineation and illumination of the real issues in dispute: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243, at [160]-[162], per Allsop P (with whom Beazley and Campbell JJA agreed); Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116, at [26]-[31] per Heydon JA (with whom Mason P and Young CJ in Eq agreed) (rejecting the "ambush theory of litigation" and endorsing the observations of Allsop J in White v Overland [2001] FCA 1333, at [4]: "in the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that in the propounding of issues for trial the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are". 101 There is no inconsistency between these statements of principle and the existence of a power, exercisable for good cause in appropriate circumstances, to direct that a party may withhold affidavits until trial. The making of such a direction does not imply that the trial is to be conducted "by ambush", nor that the party seeking the direction has failed to co-operate in identifying and elucidating the issues in dispute. On the contrary, the statutory criteria that must be taken into account for a direction to be made should ensure that the issues are clearly defined and that the party seeking the directions demonstrates that the "dictates of justice" will be served by the direction.

Boyer v Collins 102 Mr Pritchard relied on the decision of the Court of Appeal of the Supreme Court of Western Australia in Boyes v Collins [2000] WASCA 344; 23 WAR 123, a personal injuries case. The issue in that case was whether the trial judge erred in making an order, pursuant to O 36 r 4 of the Rules of the Supreme Court 1971 (WA), granting leave to the respondent to adduce video film evidence at trial and excusing the respondent from producing the film to the appellant. Order 36 r 4 provided that, unless otherwise ordered, no photograph was receivable in evidence unless the party not relying on the photograph was given the opportunity to inspect it and to agree to the admission without further proof. 103 Ipp J (with whom Pidgeon and Wallwork JJ agreed) held that the trial judge erred in failing to adopt the correct approach to an application under O 36 r 4. His Honour said (at 141 [60]) that in determining an application under O 36 r 4: "the court should be biased towards disclosure, subject to there being persuasive grounds by reason of the particular circumstances of the individual case to make an order in terms of the rule". 104 A number of points should be made about Boyes v Collins. First, it was a decision on an application under a particular rule of court. Secondly, Ipp J's statement of principle recognised that the rule itself expressly contemplated that an order could be made in appropriate circumstances excusing a party from compliance with the disclosure requirements. Thirdly, the respondent made it plain that there was no allegation of malingering or conscious presentation of a fraudulent claim (at 139 [53]). The only allegation was that the appellant was not suffering a physical disability in consequence of the accident he had sustained. Fourthly, the trial judge had acted in accordance with an almost uniform approach that had been adopted in the District Court to applications of this kind. That approach assumed that it was essential for the doing of justice, even in the absence of an allegation of malingering, to allow a defendant to take a plaintiff and the plaintiff's doctors by surprise by confronting them with a video that they had not previously seen (at 140 [54]-[55]). 105 Ipp J characterised the District Court's practice as virtually identical to the refusal of the nineteenth century common law courts to countenance pre-trial discovery of documents. His Honour rejected the practice as "based on a pessimistic view of the standards of honesty of litigating parties" (at 140 ([56])). The practice was also inconsistent with the "cards on the table" approach to litigation adopted in Western Australia (at 143 [64]). 106 Boyes v Collins does not support the proposition that a court in New South Wales has no power to make a direction authorising a party to withhold material that might be adduced in evidence from the other party until the trial. Nor does the judgment identify the "persuasive grounds" that would be necessary to displace the "bias" towards disclosure underlying O 36 r 4. It was enough for the Court in Boyes v Collins to point to circumstances, such as the fact that there was "every chance" that the trial would have to be adjourned and that the plaintiff had already committed herself as to the nature and extent of her disabilities (at 142 [62], 145 [73]), suggesting that a departure from the general rule was not warranted.

Conclusion on Power 107 For these reasons I conclude that courts in New South Wales have power under the CP Act and the UCPR to make orders relieving one party to civil litigation from complying, in whole or in part, with directions that would otherwise require that party to disclose to the other in advance of the trial all affidavits and reports to be adduced in evidence at the trial. The sources of such a power include, (although they are not necessarily limited to) CP Act, s 61(1), (2)(c) and UCPR, rr 2.1, 2.3. In exercising the power, a court is required to take into account the overriding purpose of the CP Act and the UCPR stated in s 56(1) of the CP Act and the objects identified in s 57(1). It is also necessary to take into account, insofar as relevant, the object of minimising delay, within the limitations outlined in s 59 of the CP Act and the principle of proportionality embodied in s 60. The court may also have regard to the matters specified in s 58(2), to the extent it considers those matters relevant. As I have explained, a decision in a particular case is likely to require a weighing of considerations that will not always be easy to reconcile.

The Question of Onus 108 There is no dispute between the parties as to where the onus of proof will lie at the trial. The Insurer has not admitted the theft pleaded by the Insured, but has not pleaded fraud on the part of the Insured in relation to the alleged theft. In these circumstances, the Insured bears the onus of proving on the balance of probabilities that the theft, as alleged, occurred: Simon v NRMA Insurance Ltd, (Court of Appeal, 12 October 1999, unreported) and Hammoud Brothers Pty Ltd v NRMA Insurance Ltd [2004] NSWCA 1. 109 The Insurer bears the onus of establishing, as pleaded in its defence to the amended statement of claim ("ASC"), that the Insured acted fraudulently in pursuit of payment of the amount sought in the ASC: cf Insurance Contracts Act, s 56(1). As the primary Judge pointed out, both parties will be entitled to lead evidence on the question of whether the terms of s 56(2) of the Insurance Contracts Act are satisfied. The parties seem to accept that the Insured bear the burden of showing that, for the purposes of s 56(2), "only a minimal or insignificant part of the claim is made fraudulently". 110 The Insured seek to circumscribe the powers conferred by the CP Act and the UCPR to make directions for the withholding of material before trial. They contend that the powers cannot be exercised where the material withheld may support the withholding party's case on a factual issue (in this case whether the Insured made a fraudulent claim) on which it bears the onus. The Insured's submission is somewhat weakened by the qualification expressed by Mr Pritchard that the primary Judge should at least have been satisfied that the case was "exceptional" before making a direction that allowed the Insurer to withhold specified material until the trial. 111 Mr Pritchard relied on Ng v Goldberg and Broadwater v Hendricks as supporting this submission. Leaving to one side the fact that these cases were decided before the enactment of the CP Act, neither propounds a rule that documents can be withheld pending a trial only where their potential effect is limited to undermining the case of the opposing party on an issue on which that party bears the onus. 112 Clearly enough, in the present case the material withheld, if adduced in evidence, might adversely affect the credit of each of the Insured and, to that extent, undermine their case that the items identified in the ASC were stolen in the manner alleged (on which the onus of proof lies on them). However, the material might also advance the Insurer's case in relation to the pleaded defence that the claim was made fraudulently (on which the Insurer bears the onus). In other words, the material could have a dual forensic purpose. 113 Where a party seeks a direction withholding material until the trial, a court will need to take into account the mandatory considerations identified in the CP Act, including the object of achieving the just determination of the proceedings and the need to facilitate the just, quick and cheap resolution of the real issues. Depending on the circumstances, these considerations may require the court to pay particular attention to questions of onus of proof. For example, if one party is permitted to withhold material that is central to a critical issue on which it bears the onus of proof, but has little or no significance on other issues, there may be a serious risk of disruption to the trial and of unfairness to the other party. But the court's power to direct that a party be permitted to withhold certain material from the other party until after the trial has commenced is not constrained by any principle of the kind propounded by the Insured in the present case. Thus merely because the material withheld from the Insured might have some relevance to an issue on which the Insurer bears the onus does not mean that the direction should not have been made.

The Insured's Affirmative Case 114 If one party to litigation is permitted to withhold material that otherwise would have to be divulged before trial, and the material supports the affirmative case the opposing party seeks to make, the opposing party may suffer injustice. That party's inability to examine the material before the trial may well impair the preparation and presentation of its case. Withholding pre-trial access to the material might also prevent the opposing party from evaluating accurately its prospects of success in the litigation and thus reduce the chances of the proceedings settling before or at the trial. 115 It is no doubt for these reasons that courts considering the so-called "Markus discretion" have taken into account whether the withheld material could advance the opposing party's affirmative case. By parity of reasoning, matters identified in ss 56 and 57 of the CP Act are likely to require a court dealing with an application to withhold material pending trial, to give consideration to whether the material supports the affirmative case of the party denied access and, if so, whether acceding to the application will cause injustice. 116 The primary Judge in the present case read the material that the Insurer proposed should be withheld from production pending the trial, as have members of this Court. His Honour pointed out (at [38]) that the material identified what the authors regarded as inconsistencies in the information provided by the Insured and challenged important parts of their case. It is difficult to imagine, without making any judgment as to the probative value of the material, that it could actually advance the Insured's pleaded case that any fraud committed by them constituted only a "minimal or insignificant part of the claim" under the Policy. Accordingly, no issue arises as to whether the direction sought by the Insurer will deny the Insured access to material that could advance their case. Exercise of Discretion 117 The Insured submit that even if all their other contentions fail, the primary Judge's exercise of his discretionary power to make a direction authorising the Insurer to withhold the affidavits and report until the trial miscarried. They argue that the discretion miscarried because his Honour erroneously approached the exercise of discretion by inappropriately assuming that the Insured were dishonest and hence likely to tailor their evidence if they had access to the relevant material prior to the trial. 118 I do not read the primary Judgment as proceeding on the basis of any such assumption. His Honour said (at [41]) that if the material was made available in advance of the trial, there would be: "an inevitable risk of the [Insured] being tempted to tailor their evidence to meet [the] evidence". (Emphasis added.) 119 He also referred to the possibility that the Insured had been dishonest in the course of considering whether the direction sought by the Insurer would lengthen the trial or harm the prospects for settlement. In the passage quoted in the previous paragraph, his Honour was doing no more than indicating that, if the material was provided to the Insured before the trial, there was a risk that the Insurer might be deprived of a legitimate forensic advantage in relation to issues going to the credit of each of the Insured. When referring to the possibility of dishonesty, his Honour was considering the effect of the proposed direction on the proceedings, having regard to the issues identified by the parties in the pleadings. Unless there are unusual circumstances (such as admissions of fraud in relation to a claim by an insured), it is inappropriate for a court considering an application of the kind made by the Insurer in this case to assume, prior to the trial, that a party against whom fraudulent conduct is alleged, or whose credit is clearly in issue, has or has not acted dishonestly. But it is equally inappropriate for the court, in assessing the justice of the case, to ignore the nature of the allegations or the issues in dispute and the manner in which it is proposed to test the evidence of the party whose credit is challenged. 120 Nor do I think that the primary Judge's exercise of power miscarried because of a failure to take into account mandatory considerations. His Honour referred to and clearly took into account the matters stated in ss 56-58 of the CP Act. He accepted (at [33]) that the primary consideration was to facilitate the just determination of the proceedings. He clearly appreciated that the making of the direction sought by the Insurer would be disadvantageous to the Insured, in that they would be deprived of an opportunity to consider the material in advance of the hearing and to provide any available innocent explanation in their own affidavits. Nonetheless, his Honour thought that there were good reasons, founded in the justice of the case, for making the direction. 121 His Honour considered the likely impact of the direction on the conduct of the trial and on the prospects for settlement. His judgment (at [43]) was that the evidence on these issues was "equivocal". No doubt there is always a risk that allowing some, but not all, evidence relevant to credit or alleged fraud to be withheld until the trial, will necessitate an adjournment of the trial to ensure that all parties are accorded procedural fairness. His Honour had to balance that risk against the justice of the case and the other factors identified in the CP Act. In my view, he performed that task. 122 Other judges may have taken a different view of the weight to be accorded to the competing considerations. Some, for example, might have thought that the risks of adjourning the trial, in order to ensure that the Insured have a fair opportunity to meet any material adverse to their credibility, outweighed the advantages, in the interests of justice, of not forewarning the Insured of the detail of the challenges to their credibility. But the fact that there is room for differences of opinion on the evaluative judgment the primary Judge was required to make does not demonstrate any error of principle or any other basis for intervention by an appellate Court.

ORDERS 123 The Insured's application for leave to appeal has raised some questions of principle. Accordingly, it is appropriate that leave be granted. However, the appeal must be dismissed. The Insured should pay the Insurer's costs of the appeal, including the application for leave to appeal. **********

07/12/2009 - Respondent's counsel's name incorrect - Paragraph(s) Coversheet 11/11/2011 - Amending reference to Bill - Paragraph(s) 28

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