Ryan v Allianz Australia Insurance Ltd (ACN 000122850)

Representation: Counsel:
S Hanscomb (Plaintiff)
W Liu (Fiona Kaufmehl)
Solicitors:
Green and Associates (Plaintiff)
Hall and Wilcox (Defendant)
FM Legal (Fiona Kaufmehl)

File Number(s): 2023/304387

Publication restriction: Nil

JUDGMENT

1. The plaintiff, Mr John Ryan, commenced proceedings against the first defendant, Allianz Australia Insurance Ltd (‘Allianz’) on 25 September 2023. Ms Fay Ryan was named as the second defendant in the proceedings in reliance upon rule 6.20 of the Uniform Civil Procedure Rules 2005 (‘UCPR’) which provides:

6.20 Proceedings affecting persons having joint entitlement

(1) Unless the court orders otherwise, all persons jointly entitled to the same relief must be joined as parties in any claim for that relief that is made by any one or more of them.

(2) Unless the court orders otherwise, any other such person is to be joined—

(a) as a plaintiff, if he or she consents to being a plaintiff, or

(b) as a defendant, if he or she does not consent to being a plaintiff.

(3) Despite subrule (1), a person may not be joined as a party to proceedings in contravention of any other Act or law.

2. Ms Ryan was joined to the proceedings as a defendant pursuant to r 6.20(2)(b) of the UCPR. Ms Ryan was married to Mr Ryan, but they were separated and Ms Ryan commenced family law proceedings against the plaintiff in about March 2023. Ms Ryan died on 11 September 2024. Ms Ryan was removed as a party to these proceedings on 11 December 2024 by order of the Court dated 9 October 2024.

3. Mr Ryan sues on a home and contents insurance policy issued on about 2 February 2022 by the defendant (“the policy”).

4. Mr Ryan claims that the house the subject of the policy was damaged in about March 2022 by a storm. It is alleged that the house is affected by “mould contamination” to the extent that it cannot be remediated. It is further alleged that the storm caused “building damage”.

5. Mr Ryan has made various claims under the policy. His claims for temporary accommodation, which are set out in paragraph 9 of the Statement of Claim, were paid. However, his claims for “the total loss payment for the building portion of the insurance claim” have been refused.

6. In his statement of claim, Mr Ryan alleges breach of agreement and breach of the Australian Consumer Law (ACL) against Allianz.

7. It is alleged by Mr Ryan in the Statement of Claim that Mr Ryan and Ms Ryan were “at all material times, the owners of the structure and dwelling situated on, and contents within, the real property situated at [address of subject land]”. There is material before me which indicates that neither Mr Ryan nor Ms Ryan owned the property on which “the structure and dwelling” stand at any relevant time.

The Notice of Motion by a non-party dated 19 March 2025

8. Ms Fiona Kaufmehl (previously Ms Fiona McDonald) was served with a subpoena on 25 November 2024. Ms Kaufmehl is not a party to these proceedings, and nor is she a party to the family law proceedings. Ms Kaufmehl is Ms Ryan’s daughter.

9. Some documents have been produced in response to the subpoena, in categories 1 – 4 set out in the subpoena. Ms Kaufmehl seeks to have the balance of the subpoena set aside.

10. The subpoena seeks records “relating to” Ms Ryan set out in categories 5 to 15 including:

11. All financial records created since 5 March 2022,

12. All medical records created since 5 March 2022,

13. All documents “which record or are connected to capacity assessments” created since 5 March 2022,

14. Trust account statements and accounts issued by Bartier Perry, solicitors, and Carter Ferguson, solicitors “in respect of these proceedings” since 5 March 2022 (Category 5).

15. All costs disclosure agreements issued by Bartier Perry and Carter Ferguson (Category 6),

16. All documents “which record or are connected to the manner by which and the persons from whom” Bartier Perry and Carter Ferguson were to take instructions with respect to matters concerning Ms Ryan (Category 7),

17. All documents from Ms Ryan to Bartier Perry and Carter Ferguson providing instructions regarding the property, Elizabeth Harris (the owner of the land) and/or the policy (Category 8),

18. All documents relied upon to constitute an authority given by Ms Ryan to enable a person to give instructions on her behalf (Category 9),

19. All documents from anyone other than Ms Ryan to Carter Ferguson and or Bartier Perry “purporting to provide instructions on behalf of Ms Ryan regarding the property, Elizabeth Harris and the policy (Category 10),

20. Any correspondence to, from or relating to Ms Ryan, Allianz, Elizabeth Harris, the policy, Julie McDonald, Kristian Kaufmehl and/or the property since 5 March 2022 (Category 11),

21. All financial records, correspondence and file notes recording instructions give by Ms Ryan, Ms Kaufmehl and anyone else to Bartier Perry or Carter Ferguson in relation to matters enumerated in subparagraphs (a) to (g) (Category 12),

22. All correspondence and file notes regarding the termination of the retainer of Carter Ferguson (Category 13),

23. All financial records, correspondence, file notes and other documents relating to Elizabeth Harris “and her affidavit evidence in these Proceedings” (Category 14),

24. All financial records, correspondence, file notes and other documents relating to (Category 15):

25. The terms on which Ms Ryan “occupied or possessed the property” (15(a)),

26. The ownership of the property (15(b)),

27. The purchase, construction and improvement of the property (15(c)),

28. The nature of the interest of Ms Ryan in the land upon which the property was situated (15(d)),

29. Any instructions given by Ms Ryan or Ms Kaufmehl to any legal practitioner about a claim against Elizabeth Harris in respect of the property (15(e)),

30. The administration of the deceased estate of Ms Ryan (15(f)).

31. The UCPR provide, in r 33.4(1):

33.4 Setting aside or other relief

(1) The court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it.

12. A subpoena will be set aside if the documents sought by it are not “of apparent relevance to the issues” in the proceedings. The documents sought must be “reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case” (see Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927 per Waddell J and Seven Network Ltd v News Ltd (No 5) (2005) 216 ALR 147 at [10] per Sackville J. See also Secretary of the Department of Planning v Blacktown City Council [2021] NSWCA 145). It is for the party serving the subpoena to establish relevance.

13. Ms Liu, for Ms Kaufmehl, argued that the subpoena ought to be set aside for the following reasons (in summary):

14. Firstly, as Ms Ryan is both deceased and no longer a party to the proceedings, the relevance of documents, held by her daughter, in relation to her, is questionable.

15. Secondly, there have never been any allegations against Ms Ryan and no legitimate forensic purpose has been demonstrated.

16. Thirdly, Ms Ryan instructed Carter Ferguson until August 2024 and Bartier Perry thereafter. Bartier Perry has produced a large volume of records under subpoena. It is unnecessary and burdensome to seek production from Ms Kaufmehl, an individual with carer responsibilities for her grandchildren when such production would be a duplication.

17. Fourthly, the breadth of each of categories 5 to 15 is oppressive.

18. Category 5 would duplicate documents produced by Bartier Perry.

19. Category 6, Category 7, Category 8, Category 9 and Category 10 are patently irrelevant to these proceedings.

20. Category 11 is both irrelevant and duplicates the request to Bartier Perry.

21. Category 12 has 7 subcategories, all of which are irrelevant. Ms Liu notes that Mr Kaufmehl is not the executor of Ms Ryan’s estate.

22. Category 13 is patently irrelevant.

23. Category 14 is ambiguous and lacks particularity. It is unclear what is being sought. It refers to an affidavit which is not in the possession of Ms Kaufmehl’s solicitor. It cannot be complied with, is oppressive and should be set aside.

24. Category 15 comprises 6 subcategories. Paragraphs (a) to (d) are not relevant and the plaintiff may already have the documents. Paragraph (e) is irrelevant. Paragraph (f) duplicates category 12(g) but is wider and more oppressive.

25. Bartier Perry has produced its entire file in response to the subpoena with which it was served. It is oppressive to seek the same documents from Ms Ryan’s daughter. Ms Kaufmehl should not be put to the time, cost and expense of answering the balance of the subpoena.

26. Ms Ryan’s estate may assert client privilege in relation to some of the documents. Ms Kaufmehl has raised with the plaintiff the issue of whether Ms Ryan’s estate ought to be give notice of any application for production.

27. Ms Kaufmehl has already incurred significant expense in relation to the subpoena and ought not to be put to more expense in all the circumstances.

28. Mr Hanscomb, for the plaintiff, submitted that the plaintiff neither consents to nor opposes the setting aside of the subpoena. The plaintiff sought that Ms Kaufmehl pay the costs of the subpoena up to 10 April, with no order as to costs after that date.

29. It was argued for the plaintiff that Ms Kaufmehl had made a late change to her position with respect to the subpoena. The late change was said to be a challenge to the “legitimate forensic purpose” of the subpoena, which was characterised as a challenge to the “language of the subpoena, on the basis of the breadth of its call and on the basis of its relationship to the issues in the proceedings by reference to the pleadings”. It was submitted that, prior to 10 April 2025, the plaintiff had understood that privilege, the cost of compliance and allegations of untoward conduct on the part of the plaintiff’s solicitors were the basis for the application to set the subpoena aside. It was accepted that there were references to the lack of relevance of the documents sought in the three affidavits of Ms Kaufmehl’s solicitor.

30. Mr Hanscomb read an affidavit of Mr Trisley which outlined some of the history of Ms Kaufmehl’s role as the holder of Ms Ryan’s power of attorney, and I have had regard to that evidence, but it is largely irrelevant to the issue at hand.

31. I accept all of Ms Liu’s submissions in relation to the subpoena. For the reasons outlined by Ms Liu and summarised above, the subpoena should now be set aside. I note that notice of the grounds argued was given to the plaintiff in a letter of 28 March 2025. That letter also contained an offer of settlement of the issue, which was not responded to and expired on 31 March 2025.

32. I reject the contention that Ms Kaufmehl should be liable for any of the costs involved in complying with the subpoena or seeking to have it set aside. The plaintiff has not been able to demonstrate that the documents sought are relevant to these proceedings. Mr Hanscomb submitted that the material was sought “to inform evidence in the insurance proceedings which will go to whether or not the insured, jointly, are entitled to more or less money indemnification than the insurer is offering”. This assertion was not substantiated. A subpoena should not be issued in the absence of a forensic purpose.

33. Ms Kaufmehl should have her costs of the Notice of Motion of 19 March 2025 and her costs in relation to her part compliance with the subpoena.

The Notice of Motion of 31 January 2025

20. The plaintiff sought four orders in its Notice of Motion of 31 January 2025, but, at the hearing, it did not press its application for the third and fourth order sought.

21. The plaintiff sought:

22. An order that general access is granted to the parties in respect of Subpoena Packet 8.

23. An order that the plaintiff is granted uplift and photocopy access to the documents contained in Subpoena Packet 10 for a period of 48 hours, and that general access is granted.

24. The lawyers for the executor of the estate of Ms Ryan, Bridges Lawyers, provided consent to the orders sought. However, the consent was given on the basis of the following conditions:

1. Our client reserves the estate’s right to claim or maintain privilege over the documents contained in packets S-8 and S-10 outside of the District Court Proceedings.

2. Your client is under an obligation not to disclose the contents of any documents he obtains under subpoena to any person, including but not limited to his family law solicitors. A breach of this undertaking may result in a finding of contempt. Our client’s obligation in this regard is in accordance with the longstanding legal principles set out in Harman v Secretary of State for the Home Department [1983] 1 AC 280 and approved in Hearne v Street (2008) 235 CLR 125.

3. Your client will not seek to exclude the insurance funds recovered from the pool for division in the Family Law proceedings concerning your client and the deceased.

4. Your client will immediately notify our client of the outcome of the District Court Proceedings.

23. The plaintiff had not given those undertakings by the time of the hearing.

Conclusion

24. Allianz was represented at the hearing. Although it was not the subject of either of the notices of motion, it was reasonable for Allianz, as the defendant, to be represented at the hearing to guard its interests and stay abreast of developments in the proceedings. For those reasons, I decided that Allianz should have its costs of the hearing of the Notice of Motion.

25. At the end of the hearing, I indicated that the following orders would be made:

1. Categories 5 to 15 of the subpoena served on Fiona Kaufmehl (also referred to as Fiona McDonald) on 25 November 2025 (Subpoena) are set aside.

2. The Plaintiff is to pay the costs of the notice of motion filed 19 March 2025 on an indemnity basis.

3. Prayers 3 and 4 of the notice of motion filed 31 January 2025 are dismissed with costs.

4. The Plaintiff is to pay Fiona Kaufmehl’s costs relating to part compliance with the Subpoena as agreed or assessed.

5. The Plaintiff is to pay the costs of the First Defendant’s attendance at the hearing on 16 April 2025 on the ordinary basis.

26. Those orders were issued on 24 April 2025.

27. I further indicated that, if the plaintiff were to provide correspondence showing that it had communicated acceptance of the four conditions contained in the letter of Bridges Lawyers of 15 April 2025, further orders could be made giving them access to subpoena packet 8 and subpoena packet 10. However, to date, no such correspondence has been forthcoming.

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