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[2026] NSWDC 20
General information, not legal advice.
District Court of NSW
2026-02-27
Russell SC DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Scott v Simpson & Anor [2026] NSWDC 20
Hearing dates: 25 February 2026
Date of orders: 27 February 2026
Decision date: 27 February 2026
Jurisdiction: Civil
Before: Russell SC DCJ
Decision: (1) Order that the respondents pay the applicant’s costs of the proceedings.
Catchwords: COSTS – preliminary discovery
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 5.3(1)
Category: Costs
Parties: Astrid Scott as tutor (Applicant)
Anthony Simpson (Respondent)
Representation: Counsel:
G Gemmell (Applicant)
R Higgins (Respondent)
Solicitors:
Boyd House and Partners (Applicant)
Kennedys Law (Respondent)
File Number(s): 2025/00124747
This judgment concerns the costs of proceedings brought by Summons seeking preliminary discovery of documents from two prospective defendants.
Rule 5.3(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides as follows:
5.3 Discovery of documents from prospective defendant
(1) If it appears to the court that—
(a) the applicant may be entitled to make a claim for relief from the court against a person (the prospective defendant) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and
(b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and
(c) inspection of such a document would assist the applicant to make the decision concerned,
the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person’s possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief.
Before action commenced, the applicant sought from the first respondent “all documents comprising your complete file (including emails, telephone file notes and text messages) held for the deceased”.
On 3 December 2024, after the exchange of correspondence, the first respondent voluntarily provided some documents to the applicant, but not all of the documents sought.
On 1 April 2025 the applicant filed the Summons which commenced these proceedings. At that time only the first respondent was a party to the Summons.
On 23 September 2025 an order was made by Cole DCJ, on a Notice of Motion, granting the applicant leave to file an Amended Summons, which added the second respondent. Costs of the Notice of Motion were agreed to be costs in the cause.
The applicant sought an order that the respondents pay the applicant’s costs of the Summons and the Amended Summons i.e. of the proceedings.
The respondents sought the following orders:
No order as to costs up to 13 February 2026.
Applicant pay respondent’s costs after 13 February 2026 on the indemnity basis.
The factual background to the prospective claim is fully set out in the affidavit of the applicant’s solicitor Mr Emanuel dated 1 April 2025 (PX 1). That affidavit says that the first respondent was a financial adviser of the applicant and the deceased. The deceased held a policy of life insurance. The deceased signed a binding death benefit nomination with the insurer nominating the applicant as the beneficiary entitled to 100 per cent of the benefit payable to the policy. Some time after that happened, the applicant and the deceased separated but remained married. The first respondent continued to provide advice to the deceased alone.
In August 2020 it is alleged that the deceased sought financial advice from the first respondent to reduce the sum insured under the policy, and to change the death benefit nomination to direct any funds to the estate of the deceased rather than to the applicant.
Following the death of the deceased, the insurer paid the reduced death benefit to the estate of the deceased.
As previously recited, on 3 December 2024 the first respondent provided some of the documents sought by the applicant, but not all. Mr Emanuel said in his affidavit (pars 17 and 18):
“I refer to the email from the Respondent to me dated 3 December 2024 at page 24 of Exhibit KLE-1 and the documents attached to the email. The documents attached to the email do not contain copies of any emails between the Respondent, the Deceased and [the sister], any advice provided by the Respondent to the Deceased in relation to the change to the sum insured in the Policy, copies of notes of telephone conversations between the Respondent, the Deceased and [the sister], or copies of text messages between the respondent, the Deceased and [the sister]. Such documents are necessary to enable me to obtain an informed opinion on an expert witness as to whether the Applicant has reasonable prospects of success in a claim against the Respondent.
From my experience in acting for Insureds in claims against Insurers, particularly Life Insurers and from my experience in advising Life Insurers, I would expect such documents to be contained in the file of an adviser providing advice to a client in relation to changes to a life insurance policy, particularly when the sum insured in the policy is to be substantially reduced.”
In the reproduction of pars 17 and 18 above, the name of the sister of the deceased has been redacted.
By letter dated 20 June 2025 (DX 3, p 20) Mr Emanuel stated the position of the applicant as follows:
“It is our client’s position that here should be documents in addition to the documents previously provided by Anthony Sipson in the file of Manly Financial Services Pty Ltd/Anthony Simpson in relation to their dealings with the deceased, [name redacted]. Those documents would include email correspondent with the deceased and/or his sister [name redacted], records of telephone conversations, written advice to the deceased in relation to the reduction of the death benefit, quotes obtained from [the insurer] in respect to premiums payable if the life benefit was reduced, advice to the deceased to call [the insurer] in relation to a reduction of his death benefit, and correspondence from the deceased in relation to the reduction of his death benefit.
These outstanding documents are essential to our client’s decision as to whether to commence proceedings against Anthony Simpson and/or Manly Financial Services Pty Ltd, including providing documents to a potential expert witness to provide a report as to the prospects of success of our client in pursuing a claim against Anthony Simpson and/or Manly Financial Services Pty Ltd.”
In the above quotation, the names of the deceased, the sister and the insurer have been redacted. By letter dated 1 July 2025 (DX 3, p 22) the solicitors for the respondents wrote to Mr Emanuel saying:
The information available to the applicant to date was sufficient for the purpose of deciding whether or not to commence proceedings.
No explanation had been provided why the information available was insufficient.
The applicant should explain how it is she says that the information available to her was insufficient for her to decide whether or not to commence proceedings.
Mr Emanuel reviewed the documents which had been voluntarily provided, and saw that they referred to several other categories of documents relevant to the change in the sum insured by the life policy, which had not been given to the applicant: see Affidavit of Mr Emanuel dated 4 August 2025 (PX 2) pars 12-14.
On 13 February 2026 the solicitors for the respondents wrote to Mr Emanuel (DX 3, p 26). That letter said that the actions of the first respondent included reviewing the deceased’s superannuation arrangements, assisting in reducing the sum insured under the life and TPD insurance policies and later recusing himself from acting as the deceased’s financial advisor in March 2021. The letter said that only the documents referrable to the attendances concerning reduction in the insurance policies were relevant to the claim contemplated by the applicant. The letter said:
“Only those documents referrable to the attendances described in paragraph 9(b) above can reasonably be said to be relevant to the Contemplated Claim. These documents span from 27 July 2020 to 25 September 2020, being the timeframe commencing from our clients’ receiving notice of the Deceased’s delinquency in paying his insurance premiums and ending with our clients’ completing all steps necessary to cause a reduction in the sum insured under the Deceased’s life and TPD policies.”
The letter concluded by saying that in spite of the contentions of the respondents, and “strictly in the interests of avoiding the costs of a hearing of the Application, our client is prepared to provide you with the documents for the period 27 July 2020 to 25 September 2020”. A link was provided in the letter to enable the applicant to download documents. The letter said that these additional documents were “sufficient for your client’s purposes under Rule 5.3(1) of the UCPR in deciding whether or not to commence proceedings”. The respondents invited the applicant to withdraw her application.
Mr Emanuel took advantage of this offer and obtained 185 pages of documents, which related to the two-month period specified by the respondents. After downloading the additional documents, Mr Emanuel came to the same view as had been expressed in the letter date 13 February 2026 i.e. that he now had sufficient documentary material to obtain expert advice concerning prospective claims against the respondents.
With the open letter of 13 February 2026, referred to above, came a Calderbank letter. This will be referred to below.
Mr Emanuel responded to the correspondence of 13 February 2026 with a letter dated 20 February 2026. This will be referred to below.
Following receipt of the 185 pages of documents, the applicant proposed that the Amended Summons be dismissed. The parties agreed on that course of action and such an order was made by me at the hearing on 25 February 2026. The outstanding issue dealt with on that date was the costs of the proceedings.
As recited above, the respondents have consistently said in correspondence that the material provided in December 2024 was sufficient for the applicant to decide whether she would bring proceedings against the respondents.
The provision of 185 further pages of documents on 13 February 2026 was made without any admission that the contention of the applicant, that she did not have sufficient material, was correct.
The Calderbank letter dated 13 February 2026 (DX 3, p 29) asserted that, after the additional production of 185 pages of documents, the applicant had sufficient information to determine whether or not to commence proceedings. That is a view which Mr Emanuel agreed with, after he downloaded and considered the documents. The Calderbank letter said that there was thus “no further need for your client’s Application”.
The Calderbank letter made an offer as follows:
The application be withdrawn
The proceedings be dismissed with no order as to costs.
By letter dated 20 February 2026 (DX 3, p 31) Mr Emanuel recited the history of the matter, including the extensive correspondence between the parties. Mr Emanuel, after referring to the additional 185 pages of documents, proposed that the Amended Summons be dismissed and the respondents pay the applicant’s costs of the Summons and the Amended Summons.
By an email dated 23 February 2026 (DX 3, p 36), the solicitors for the respondents said that the respondents did not agree to paying the applicant’s costs of the Summons and the Amended Summons. That letter asked Mr Emanuel to confirm whether the applicant intended to press the substantive application in light of the documents that were provided on 13 February 2026.
Mr Emanuel responded by an email dated 23 February 2026 (DX 3, p 37) which pointed out that the applicant had already proposed that the proceedings be dismissed. Thus, the only outstanding issue was costs.
In response the solicitors for the respondents asked for an indication of the amount of costs that the applicant was seeking (DX 3, p 37). Mr Emanuel provided that on 24 February 2026 (DX 3, p 38). I do not regard the request for an indication of the quantum of costs as anything more than a sensible attempt to obviate the need for a hearing on costs. It is not an admission of any sort.
Rule 5.3.1(a) of the UCPR requires an applicant to make reasonable enquiries to obtain sufficient information before bringing an application for preliminary discovery of documents. Counsel for the respondent submitted that the applicant had not done so. I do not accept this submission.
The applicant was in the dark about what took place between the deceased, his sister and his financial adviser concerning the reduction in the life insurance cover. The applicant and the deceased had separated, and thereafter the respondents acted only for the deceased. It is hard to imagine what reasonable enquiries could have been made by the applicant, apart from asking the respondents for copies of documents. None were suggested by the respondents. In my view the enquiries made by the applicant were reasonable and necessary.
Rule 5.3.1(b) of the UCPR says that the applicant must show that the respondent “may have” possession of documents that can assist in determining whether or not the applicant is entitled to make a claim for relief. Counsel for the respondent submitted that the applicant had all the documents she needed before the Summons was filed. I do not accept this submission.
Mr Emanuel has been in practice as a solicitor for over 50 years, and much of his practice has been in litigation, including claims for professional negligence (PX 2, par 16). It was the opinion of Mr Emanuel, based upon his experience in acting for insured parties in claims against insurers, that documents of the kind outlined in par 17 of PX 1 would be contained in the file of an advisor providing advice to a client in relation to changes to a life insurance policy, particularly when the sum insured in the policy was to be substantially reduced (PX 1, par 18). That opinion proved to be correct, when the 185 pages of additional documents were provided.
Rule 5.3.1(c) says that inspection of the documents would assist the applicant to make a decision about commencing proceedings. Mr Emanuel came to the view that once the additional 185 pages were handed over, and not before then, the applicant was in a position to make her decision.
Both parties submitted that I should not conduct a “shadow trial” by examining all of the discovered documents, to discern whether the applicant’s insistence on obtaining further documents was correct or justified, a proposition which I warmly embraced.
The solicitors for the respondents asserted many times in correspondence that the applicant already had what she needed. However there was no evidence to justify such assertion or to gainsay or challenge the opinion of Mr Emanuel.
Counsel for the applicant submitted that she was entitled to her costs of the proceedings because:
The applicant was put to expense, delay and inconvenience because the respondents declined to discover relevant documents.
Had the respondents provided the documents and information which they did on 13 February 2026, when the documents were first requested in late 2024, there would have been no need to file the Summons, and then pursue the preliminary discovery application to a point just days before the hearing.
I accept these submissions.
The order of the court is:
Order that the respondents pay the applicant’s costs of the proceedings.
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Scott
Simpson & Anor [2026] NSWDC 20