Omran v AAI Ltd [2025] ACTSC 150

1. By application in proceeding filed 26 March 2025, the plaintiff sought the following orders: 1. The defendant is to provide further and better discovery pursuant to rule 606 of the Court Procedure[s] Rules 2006; 2. Pursuant to rule 1506 the hearing set to commence on 5 May 2025 be vacated; 3. The matter be listed for a call over following the plaintiffs application; and 4. The cost[s] of the application be costs in the cause.

2. The grounds for the application identify that, although orders for discovery were made in relation to the first and second defendant requiring discovery to occur by 6 September 2024, copies of the discoverable material were not provided by the first defendant until 20 January 2025 and by the second defendant until 29 January 2025. The grounds refer to the fact that there was a listing hearing callover on 30 January 2025 at which the matter was listed for hearing on 5 May 2025. The plaintiff says that she has been prejudiced by the late and partial discovery of the first and second defendants.

3. As articulated by senior counsel for the plaintiff at the hearing, the focus of the application was upon the vacation of the hearing date and the provision of certain documents referring to an entity known as “Midcity”. It was submitted that, if the hearing was vacated, it would be open to the parties to have discussions about the scope of additional discovery that was necessary and that, if a further application was to be made in relation to items in dispute, then that could be made in due course.

The claim

4. The proceedings were commenced on 20 March 2024. The plaintiff alleges that there was a rainstorm on 6 January 2021 which led to broken roof tiling and water penetrating the house. She alleges that she contacted the first defendant, AAI Limited t/a AAMI, to lodge a claim under the home insurance policy for her residence (“the residence”).

5. The first defendant, AAMI, was the insurer. The second defendant, Home Repair.net.au Pty Ltd, is alleged to have been a contractor engaged by the first defendant to organise repair work on the residence. The third defendant, Emergency Trade Services Pty Ltd, is alleged to have been a contractor engaged by the second defendant to carry out repair works on the residence. The fourth defendant, Gold Star Property Services Pty Ltd, is a company alleged to have been engaged by the third defendant to carry out temporary rectification to the residence.

6. The fourth defendant is alleged to have attended to complete temporary rectification works after the storm on 6 January 2021. Those included putting a tarpaulin over sections of the roof. On 21 March 2021, there was a further rainstorm. On that day, the plaintiff was walking within the living room and slipped and fell on a puddle of water, sustaining injury for which damages are claimed.

7. The procedural history of the matter involves what appears to be a lack of attention to the claim on the part of the solicitors for the plaintiff, and some oversights by the first and second defendants in dealing with the issue of discovery.

8. On 29 April 2021, the first defendant identified to the plaintiff’s solicitors that the second and third defendants and “Midcity Group” were involved in completing temporary repairs. However, the email indicated that Midcity Group attended the property on 21 March 2021, the day of the accident and, it appears, after the plaintiff’s slip on that day.

9. On 29 June 2023, a request was made to the solicitors for the first defendant for contracts or agreements with any entity that performed repair work at the property on 15 January 2021 or between 15 January 2021 and the fall on 21 March 2021. On 9 August 2024, the plaintiff sought discovery from each of the defendants.

10. The first defendant’s list of documents was filed on 5 September 2024. Item 32 on the list of documents was entitled “Midcity repair works report” dated 2 February 2021. A paralegal at the plaintiff’s solicitors requested copies of the first defendant’s documents, including item 32, on 16 October 2024. This was not responded to. A follow-up email was sent on 20 January 2025. The same day, a link to the documents was provided.

11. The parties attended mediation on 23 January 2025. The proceedings did not resolve.

12. The second defendant’s list of documents was filed on 16 September 2024. That included “Midcity Roof Damage Assessment” dated 22 January 2021 (item 16) and nd “Midcity 2 Damage Assessment (damages to balcony)” dated 2 February 2021 (item 17). A paralegal at the plaintiff’s solicitors requested the second defendant’s documents, including items 16 and 17, on 16 October 2024. This was not responded to. On 29 January 2025, the plaintiff’s solicitors circulated an unsealed application in proceeding seeking further discovery. Just over an hour later, the solicitors for the second defendant provided a link to the relevant documents.

13. In both cases, the failure by the first and second defendants to respond to the request for copies of their discovered documents resulted from an oversight on the part of their solicitors. Once that oversight was brought to their attention, it was properly remedied.

14. The plaintiff was required to file and serve a listing hearing questionnaire prior to the listing hearing on 30 January 2025. No listing hearing questionnaire was filed. The plaintiff sought to have the listing hearing adjourned until its application in proceeding was heard. The Registrar did not accede to that request. The proceedings were listed for hearing on that date. There was no appeal from the Registrar’s decision to list the proceedings for hearing. The plaintiff’s listing hearing questionnaire was eventually filed on 18 March 2025 and served the next day. It identified an alleged failure to provide proper discovery as a matter requiring directions in addition to the standard directions for the purposes of the hearing.

15. The plaintiff’s statement of particulars was required to have been filed and served by 12 November 2024. An unsealed copy was provided to the parties on 20 January 2025. It has not been filed and, as a consequence, a sealed copy has not been served.

16. On 21 February 2025, the solicitor for the plaintiff sent to the solicitor for the second defendant a letter indicating an intention to file applications for further discovery, for the administration of interrogatories and to amend the statement of claim, including by joining further parties. This would involve the vacation of the hearing date. The letter included: “we have received advice from senior counsel to amend the statement of claim which may include joining further parties”. No further details of the amendment or the additional parties were provided.

17. On 28 February 2025, the solicitors for the plaintiff requested a copy of the policy of insurance between the plaintiff and the first defendant at the time of the incident. This was the first request for a copy of the policy. That request was followed-up on 4 March 2025. It was ultimately provided by email on 6 March 2025. There is no explanation as to why it was not included in the first defendant’s list of documents, or why it had not been obtained by the plaintiff’s solicitors years prior to the commencement of proceedings.

18. On 3 March 2025, the solicitor for the third defendant wrote to the plaintiff pointing out that, if an application seeking to amend the claim or vacate the trial was to be made, it should be done urgently having regard to the fact that the hearing was due to commence in eight weeks.

19. On 17 March 2025, the proceedings were listed for directions before the Registrar. At that stage, directions were sought relating to an application that the hearing be vacated, that the parties provide further discovery and that a further party be joined as a defendant. That led to the service of the current application on 29 March 2025.

20. On 10 April 2025, in response to correspondence from the second defendant, the plaintiff repeated the claim for significant further discovery.

Consideration

21. As articulated at the hearing, the focus of the plaintiff’s application was in relation to Midcity. Two documents were tendered which indicated that somebody from Midcity attended the premises on 22 January 2021 and 2 February 2021 to, at least, inspect the premises and provide a quote for certain works. The attendance on 2 February is less significant because it relates to damage to the balcony rather than the roof. The attendance on 22 January included a description of the required scope of works and a quote or estimate for repair to concrete tiles, guttering and ridge/hip capping. Prior to the scope of works, there is some basic information under the heading “Roof Report” which includes: ROOF REPORT Is the roof leaking? Yes Where is the roof leaking/rooms affected? 2nd Second storey - above Bedroom Area … The property was constructed over 20 years ago, observed the roof is in good condition for its age. We also observed approximately 50 tiles have been damaged which have been damaged in the storm event. We are of the opinion 6meters of the Squarline gutter required replacement. At the time of our inspection, we observed no maintenance related items requiring attention.

22. Counsel for the plaintiff submitted that the reference to the roof leaking may be a reference to an issue that was current at the time of the inspection, as distinct from a general statement that there was damage to the roof. He submitted that the documents left open the possibility that Midcity had a greater responsibility than merely providing a scope of works or quote and, hence, may be a party that the plaintiff wished to join in the proceedings.

23. He also referred to the provision of the contract of insurance provided on 6 March 2025.

24. He submitted that, once the Midcity documents were provided, Midcity may be a further entity that should be joined in the proceedings. He also submitted that the plaintiff may wish to make a contractual claim against the insurer in addition to its present claim, which is framed solely in negligence.

25. The first and second defendants conceded that they had failed to provide copies of the discoverable documents in accordance with the request made on behalf of the plaintiff on 16 October 2024. In each case, that arose from an oversight. Each of the defendants opposed the vacation of the hearing, submitting that it would be inconsistent with proper case management for the matter to be vacated in the circumstances.

26. I accept that there was a failure on the part of the first and second defendants to provide copies of the discoverable documents in accordance with the request. It is notable that the documents were then provided very promptly in response to follow-up requests or notice of a proposed application in proceeding.

27. The two bases for the application to vacate the hearing are that the plaintiff may wish, after investigation, to join Midcity as a party, or alternatively, amend its pleading so as to include a contractual claim against the first defendant. It is notable that no amended pleading articulating the contractual claim against the first defendant has been provided to the court. Further, so far as the evidence discloses, the only relevant involvement of Midcity appears to have been on 22 January 2021, and there is no evidence that any works were undertaken on that occasion — although photographs were taken of the roof and the temporary repairs that were in place.

28. I do not consider the possibility of a contractual claim against the first defendant to be a matter that should lead to the vacation of the hearing date. Such a contractual claim was always available to the plaintiff. The plaintiff could have, at any time since she first instructed solicitors in 2021, requested a copy of the terms of her contract of insurance if she did not possess it herself. A contractual claim was at least as obvious a claim as one in negligence, and was open to be investigated prior to the commencement of proceedings. In those circumstances, and where no contractual claim has been articulated in a way that would allow an assessment of its merits, it is not appropriate to vacate the proceedings at this stage.

29. In relation to Midcity, the significance of the unintentional failure of the first and second defendants to provide copies of the documents on their respective lists of documents must be considered in the context of the progress of the case as a whole. It is certainly relevant to take into account the fact that there was no attempt to follow-up the request for documents until shortly before (in the case of the first defendant), or shortly after (in the case of the second defendant), the mediation that occurred on 23 January 2025.

30. It is also relevant to take into account that the purpose of discovery is not to disclose possible causes of action against non-parties, but is instead defined by the facts in issue in the proceedings as pleaded. The short form of pleading adopted in the statement of claim articulates only at the most general level the claims against the defendants. I have remarked elsewhere that, although r 53 of the Court Procedures Rules 2006 (ACT) permits an abbreviated form of pleading, it does not avoid the need for intellectual effort to define the claim being made: see Van Duren v ACT [2025] ACTSC 149. So far as the second defendant is concerned, it is the first defendant that appears to have had a relationship with Midcity. The relevant pleading is that at [1.4] of the statement of claim. That alleges: 1.4. At all material times the Second Defendant: … 1.4.2. Was a contractor engaged by the First Defendant to organise repair works on the Residence.

31. The second defendant’s defence to that allegation is quite lengthy, describing the relationship between the second defendant, the first defendant and the “Suncorp Group”. It admits that it had “an authority” from Suncorp to arrange for the residence to be made safe, and to perform an assessment and prepare a quote in relation to insurable damage to the residence. Apart from the specific matters admitted, it denies the balance of [1.4]. The plaintiff has not demonstrated by reference to the current pleadings that the contractual relationship between the second defendant and Midcity is relevant to a fact in issue. It is therefore not appropriate to make any order requiring further disclosure of documents relating to the contractual relationship between the second defendant and Midcity.

32. It is not uncommon that some significant issue for the purpose of the proceedings only emerges at an unsatisfactorily late stage. Where that is an important issue for a plaintiff — and does not obviously arise from the plaintiff’s or the plaintiff’s solicitors own failures — the emergence of such an issue may require the court to take the unpalatable step of vacating an impending hearing, even where that imposes significant costs or other burdens on the other parties. In the present case, notwithstanding the admitted failure on the part of the first and second defendants, I am left wondering about the significance of the issue with Midcity, the merits of any possible contractual claim, and whether or not any less-than-ideal framing of the case arises from a failure to fully consider the scope of the claim at an earlier stage.

33. The plaintiff has not demonstrated that it is in the interests of justice to vacate the hearing date for the purposes which the plaintiff has identified. Nor has she demonstrated that the first or second defendants have failed to comply with their respective disclosure obligations by failing to disclose more than they have in relation to Midcity. Therefore, it is appropriate that the application in proceeding be dismissed.

34. I will hear the parties as to costs. [The parties were heard in relation to costs.]

35. Having heard the parties as to costs, in my view, costs should follow the event, but any assessment should await the end of the proceedings.

Orders

36. The orders of the Court are: (1) The application in proceeding filed 26 March 2025 is dismissed. (2) The plaintiff is to pay the defendants’ costs of the application, but those costs may not be assessed until the proceedings end.

I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: