Edwards v Avant Insurance Limited - [2020] TASSC 8

[2020] TASSC 8

COURT: SUPREME COURT OF TASMANIA

CITATION: Edwards v Avant Insurance Limited [2020] TASSC 8

PARTIES:  EDWARDS, Stephen John
  v
  AVANT INSURANCE LIMITED

FILE NO:  2674/2018
DELIVERED ON:  14 December 2018
DELIVERED AT:  Hobart
HEARING DATES:  6, 7 December 2018
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Courts and Judges – Contempt – Particular contempts – Breach of undertaking to Court – Implied undertaking – Documents disclosed by prosecution in criminal proceedings – Scope of implied undertaking – Disclosure to accused's insurer.

Taylor v Serious Fraud Office [1999] 2 AC 177; Hearne v Street [2008] HCA 36, 235 CLR 125; Cadence Asset Management Pty Ltd v Concept Sports Ltd [2006] FCA 711; QPSX Ltd v Ericsson Australia Ltd (No 5) [2007] FCA 244; Dale v Veda Advantage Information Services and Solutions Ltd [2007] FCA 1603; Shearpond Pty Ltd v Atune Financial Solutions Pty Ltd (No 3) [2014] FCA 1448, referred to.
Aust Dig Courts and Judges [145]

Estoppel – Estoppel by conduct – Act, omission or assumption – Representation generally – Generally – Representation by insurer – Representation as to indemnifying insured for legal costs of defending criminal charge – Unreasonable to interpret email as unqualified representation – No estoppel.

Aust Dig Estoppel [1052]

REPRESENTATION:

Counsel:
             Plaintiff:  B R McTaggart SC, C Sluiter
             Defendant:  T McEvoy QC, W Newland
Solicitors:
             Plaintiff:  Murdoch Clarke
             Defendant:  HWL Ebsworth

Judgment Number: [2020] TASSC 8
Number of paragraphs: 51

Serial No 8/2020
File No 2674/2018

STEPHEN JOHN EDWARDS
v AVANT INSURANCE LIMITED

REASONS FOR JUDGMENT BLOW CJ

14 December 2018

This action concerns a dispute about an insurance claim by a medical practitioner. The plaintiff, Dr Stephen Edwards, has been charged with murdering his mother. It appears that she died shortly after he had given her certain medication. At the time he was the holder of a "Practitioner Indemnity Insurance Policy" issued by the defendant, Avant Insurance Limited. He made a claim under that policy, seeking to be indemnified in respect of legal fees and other expenses in relation to his defence of the murder charge on the basis that the charge arose from his provision of "Healthcare or Unpaid Healthcare" within the meaning of a clause in the policy. The insurer contends that it is not obliged to indemnify the plaintiff, at this stage, and that it is not liable to do so on any basis that was relied upon by the plaintiff at the trial of the action.
Counsel informed me that the murder trial is expected to commence with the taking of a plea in February 2019. It is expected that a jury will be empanelled in mid-March 2019. There is no evidence before me as to any particulars supplied by the Crown as to the basis upon which it is alleged that the plaintiff committed the crime of murder. It seems likely that the Crown will rely on s 157(1)(a) and (c) of the Criminal Code. Those provisions read as follows:
"(1) Culpable homicide is murder if it is committed —
(a)with an intention to cause the death of any person, whether of the person killed or not;
(b)...
(c)by means of any unlawful act or omission which the offender knew, or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person ...".
Part B, Division 1 of the relevant policy includes the following:
"Part B
Cover for legal fees and other expenses
This part of the policy is designed to protect your reputation and ability to practise as a healthcare professional. It covers your legal fees and other expenses for inquiries from a variety of organisations that you are likely to come into contact with as a member of the healthcare industry.
_____________________________________________________________________
Division 1
Cover for disciplinary board, criminal and coronial inquiries and proceedings
We cover Legal Fees and Other Expenses that We incur with the Lawyer or Other Person in relation to:
5 ...
6 Criminal proceedings
defending or responding to a criminal inquiry, investigation or proceeding arising from Your provision of Healthcare or Unpaid Healthcare, commenced and notified to Us in the Policy Period."

Clause 19.9 of the policy sets out a definition of "Healthcare". The relevant part of that definition reads as follows:
"19.9 Healthcare
Means:
(a) any care, treatment, advice, service or goods provided by You in respect of the physical or mental health of a patient".
Clause 19.31 of the policy contains a definition of "Unpaid Healthcare". The relevant parts of that definition read as follows:
"19.31 Unpaid Healthcare
Any care, treatment, advice, service or goods provided by You in respect of the physical or mental health of a patient and which is restricted to:
...
(d) any care, treatment, advice, service or goods provided by You as an unpaid volunteer, that is, without the expectation or entitlement to payment or other consideration, apart from reimbursement or receipt of reasonable expenses such as airfares, accommodation or meal allowances."
The plaintiff's practice was in New South Wales. His mother was in Hobart. She was not one of his regular patients. He contends that, at the time of the conduct to which the murder charge relates, he was providing her with "Unpaid Healthcare" within the meaning of the policy.
If his intention at the relevant time was to cause his mother's death, then he would not be entitled to cover under the policy. If his intention was to alleviate his mother's medical symptoms, then his conduct could well have amounted to "Unpaid Healthcare", but could possibly also have made him guilty of murder under s 157(1)(c).
It was pleaded in the statement of claim that on the day in question the plaintiff provided healthcare to his mother within the meaning of the relevant policy provisions, and that she was then a patient of his within the meaning of the relevant policy definitions. However the plaintiff did not seek to prove at the trial that he was providing healthcare or unpaid healthcare. His case at trial was that he had made a claim under the policy; that the insurer sent an email on 30 March 2017 that constituted an acceptance of liability under the policy to provide cover for his legal fees and other expenses; and that the conduct of the insurer, for various reasons, compelled it to indemnify him. On that basis, he is seeking declaratory relief, orders in the nature of specific performance, and equitable compensation. He contends that the insurer has breached its duty of good faith, and that it is precluded from refusing to indemnify him as a result of the operation of the doctrines of election, waiver and estoppel.
The insurer contends that it has not become liable to indemnify the plaintiff on any of the bases that he relies upon; that it has received insufficient information about the murder case for it to decide whether the plaintiff's conduct falls within the scope of the policy; and that it is therefore too early for it to decide whether to accept the claim.
At the trial, the parties relied entirely on documentary evidence. There was no dispute as to the authenticity of any of the documents. The evidence included a number of letters and emails that passed back and forth between the plaintiff's solicitors and individuals working for the insurer's parent company, Avant Mutual Group Limited, which undertook the management of the claim.
From an early stage, there was a problem about the provision of documentation by the plaintiff's solicitors to Avant. His solicitor, Mr O'Shannessey of the firm Murdoch Clarke, took the view that it would be improper for him to provide Avant with any document that he received as a result of the Director of Public Prosecutions discharging his duty of disclosure unless Avant first gave an undertaking to the effect that it would use the disclosed documents solely for the purposes of the plaintiff's claim, and that it would not provide the material to anyone else without first obtaining the agreement of the plaintiff. He first sought that undertaking in a letter of 13 April 2017. He was unsuccessful, despite many subsequent requests. Avant had a privacy policy, saw no need to give any such undertaking, and was unwilling to give one.
In civil litigation, there is a well established rule that, when a litigant is compelled to make discovery of documents to another party to the litigation, that other party may not use the documents or information derived from them for any purpose unrelated to the conduct of the proceedings: Harman v Secretary of State for Home Department [1983] 1 AC 280; Hearne v Street [2008] HCA 36, 235 CLR 125. Contravention of that rule amounts to contempt of court. It is said that a party who receives or inspects discovered documents gives an "implied undertaking" not to use the documents or information from them for a purpose unrelated to the conduct of the proceedings.
In Taylor v Serious Fraud Office [1999] 2 AC 177, the House of Lords held that that rule also applies to material disclosed by the prosecution in criminal proceedings. The policy reasons for extending the operation of the rule to criminal proceedings were explained by Lord Hoffmann as follows, at 211:
"Many people give assistance to the police and other investigatory agencies, either voluntarily or under compulsion, without coming within the category of informers whose identity can be concealed on grounds of public interest. They will be moved or obliged to give the information because they or the law consider that the interests of justice so require. They must naturally accept that the interests of justice may in the end require the publication of the information or at any rate its disclosure to the accused for the purposes of enabling him to conduct his defence. But there seems to me no reason why the law should not encourage their assistance by offering them the assurance that, subject to these overriding requirements, their privacy and confidentiality will be respected."
That aspect of that case has subsequently been referred to and accepted as correct in a number of Australian cases: Ollis v New South Wales Crime Commission [2007] NSWCA 311, 177 A Crim R 306 at [48]; Re Clarecastle Pty Ltd (in liq) [2011] NSWSC 553, 251 FLR 225 at [22]; Alcoa of Australia Ltd v Apache Energy Ltd (No 6) [2014] WASC 287 at [21].
However there is a body of case law that establishes that the rule forbidding the use of a disclosed document for a purpose unrelated to the litigation does not preclude a litigant from providing such a document to a litigation funder: Cadence Asset Management Pty Ltd v Concept Sports Ltd [2006] FCA 711 at [5]-[6]; QPSX Ltd v Ericsson Australia Ltd (No 5) [2007] FCA 244 at [18]-[25]; Dale v Veda Advantage Information Services and Solutions Ltd [2007] FCA 1603; Hearne v Street (above) per Hayne, Heydon and Crennan JJ at [109]; Shearpond Pty Ltd v Atune Financial Solutions Pty Ltd (No 3) [2014] FCA 1448. It is clear that the rule prohibiting the use of disclosed material for purposes unrelated to the litigation applies not just to the parties to the litigation, but also to non-parties such as expert witnesses, litigation funders and insurers.
In the light of these authorities, it is clear that the plaintiff's solicitors were correct in thinking there was a rule that restricted the dissemination of disclosed material, but wrong to think that that rule impeded their disclosure of such material to Avant. It is also clear that it was appropriate for Avant to decline to give any sort of undertaking to the plaintiff's solicitors about the disclosure of material that they were requesting. In particular, it was not appropriate for Avant to be asked to undertake not to pass on disclosed material to others without the plaintiff's consent. Avant was entitled to obtain independent advice as to matters relevant to the question whether the plaintiff's provision of medication to his mother amounted to a provision of unpaid healthcare, and that could well have involved seeking opinions as to the likely effects of medications and dosages from independent medical experts. The provision of disclosed material to such experts would have been for a purpose related to the criminal proceedings, and would therefore have been permissible.
Clause 17.8 of the policy contains provisions requiring the plaintiff to provide documents and information to the insurer. The relevant provisions in that clause read as follows:
"17.8 You must cooperate
17.8.1You must cooperate with the Lawyer, or Other Person in resolving the Claim or Request for Indemnity in a satisfactory, timely and cost-effective way. In particular, You must:
(a) give Us and the Lawyer a full and truthful account of the relevant facts;
(b) give Us and the Lawyer any relevant information or documents in Your possession that he or she askes for;
(c) obtain any other relevant information or documents that You can;
(d) ...
(e) ...
17.8.2You agree at Your expense to give Us, the Lawyer or Other Person all information, documents and assistance We reasonably require and co-operate fully with Us, the Lawyer or Other Person."
Clause 17.13 provides as follows:
"17.13 Claims acceptance
The acceptance of a Claim or Request for Indemnity by Us under this Policy can be subsequently withdrawn if facts come to Our attention that trigger or satisfy a Policy exclusion, or the Policy does not cover the Claim or Request for Indemnity."
As I have said, the plaintiff contends that the insurer accepted his claim by sending his solicitors an email on 31 March 2017. The events leading up to the sending of that email were as follows:
·     On 7 February 2017 the plaintiff's solicitor, Mr O'Shannessey, had a telephone conversation with Alison Fitzgerald of Avant. Her position was "Head of Medical Defence and Service South Australia and Tasmania".
·     On 9 February 2017 Mr O'Shannessey wrote to Ms Fitzgerald sending her a copy of the complaint by which the plaintiff was charged with murder, and stating that he sought to be indemnified for his legal fees under the policy.
·     During March 2017 there was correspondence between the plaintiff's solicitors and Avant as to the legal costs and disbursements. Arrangements were made for the firm of Murdoch Clarke to act in the matter. Hourly rates were agreed upon. No documents were provided at that stage in relation to the plaintiff's treatment of his mother.
·     There was only one request from Avant during March 2017 for any such documents. It came from a Mr Paul Stanley, whose title was "Claims Acceptance Specialist". At that stage the police were investigating the death of the plaintiff's father. In an email of 14 March 2017, Mr Stanley asked for "any related document(s) such as consultation notes, medical records, prescriptions etc". He went on to say, "It would also be appreciated if you can provide Avant with similar documents in relation to Dr Edward's [sic] treatment of his mother." Evidently Mr Stanley was unaware that there were no such documents relating to the plaintiff's treatment of his mother because she was not one of his regular patients.
The email that is central to the plaintiff's contentions in this action was sent on 30 March 2017 by Ms Fitzgerald of Avant to the plaintiff's solicitor, Mr O'Shannessey. The critical sentence reads, "Cover is provided under Part B, Clause 6". The full text of the email is as follows:
"In relation to Nelda Edwards, Dr Edwards' assistance in relation to this matter in accordance with the terms and conditions of his Avant Insurance Limited practitioner Indemnity Insurance Policy for the 1 January 2017 – 31 December 2017 Policy Period. Cover is provided under Part B, Clause 6 Assistance under this clause is limited to $1,000,000.00 for all claims made under Part B Division 1 during the Policy Period. Our acceptance of this claim remains subject to the terms and conditions of the Policy, including any exclusions which may apply now or in the future. Clause 16.4 may apply to this indemnity decision. We reserve the right to withdraw acceptance if factual circumstances are subsequently brought to our attention which mean the claim does not fall within the scope of cover provided by the Policy." [My emphasis.]
It is significant that the email included the words "Our acceptance of this claim remains subject to the terms and conditions of the Policy ...". Those terms and conditions included cl 17.8.2, which required the plaintiff to give the insurer documents and assistance that it reasonably required. When the email was sent, Avant had no documents relating to the fundamental question of whether the plaintiff, when he gave his mother medication shortly before her death, was trying to treat her medical symptoms or trying to kill her. Euthanasia would not have amounted to "Healthcare or Unpaid Healthcare" for the purposes of the policy.
When that email was sent, Ms Fitzgerald had already received a number of invoices from Mr O'Shannessey for legal fees and expenses relating to the defence of the murder charge and to the police investigation relating to the death of the plaintiff's father. Eight days before the email was sent, Ms Fitzgerald sent an internal email to a colleague at Avant in which she said, "Paul Stanley from claims acceptance has asked for evidence that it was healthcare ie a prescription or the like. I won't be able to pay the invoices until he gets a response to this request."
A response satisfactory to Avant had not been received when the email of 30 March was sent. In fact a response satisfactory to Avant was never received. In the interval of about 18 months between the 30 March email and the commencement of this action on 3 October 2018, there were a number of requests by Avant for the plaintiff's solicitors to provide documents, but little was provided. A summary of the most significant communications between Avant and the plaintiff's solicitors, and my comments as to them, are as follows:
·     In an email of 3 April 2017, Ms Fitzgerald of Avant asked Mr O'Shannessey, "Do you have any instructions on the release of the record of interview?"
·     In an email of 4 April 2017, Ms Fitzgerald sought clinical records, a prescription, a letter from the prosecution that outlined the circumstances, a transcript of any discussion on the court record, and "the record of interview". It is clear that there were no relevant clinical records or prescriptions. It is highly unlikely that there would have been a letter from a prosecutor outlining the Crown's contentions or a transcript of any discussion in court.
·     In his letter of 13 April 2017, which I referred to above at [11], Mr O'Shannessey said for the first time that he would require Avant to give an undertaking to use the disclosed documentation solely for the purpose of confirming its position as to the indemnification of the plaintiff, and not to provide the documentation or copies to any other person without first obtaining the agreement of the plaintiff. He also asserted that Avant would be bound by an implied undertaking not to use the disclosed material other than for the purpose of assessing its indemnification of the plaintiff.
·     In a letter dated 9 May 2017, Mr Stanley of Avant requested "the clinical notes or medical records that detail the provision of healthcare". His letter mentioned "consultation notes, letters of referral, specialists' reports, pathology and imaging results, prescriptions, Medicare billing, [and] hospital discharge summaries and correspondence issued and received in relation to the management of the patient".
·     On 11 May 2017 Mr O'Shannessey wrote back saying that the plaintiff did not possess any such documents and asking, "What other documents do your [sic] request to be supplied?"
·     In an email of 30 May 2017, Mr Stanley requested "a detailed fact sheet as given to Dr Edwards by the police or officer in charge statement or both" and "Any document given to Dr Edwards by the police describing the facts as alleged by them". There may not have been any such documents. Although police officers in Tasmania routinely prepare written summaries of facts for prosecutors appearing in the Magistrates Court, I do not know whether that is done in murder cases. A prosecutor does not need information about the facts in a murder case because magistrates do not have the power to grant bail in such cases: Justices Act 1959, s 70(2). If the usual procedures were followed, it is likely that the plaintiff's solicitors had been provided with a number of witness statements, but unlikely that they had been provided with any sort of summary of the evidence or outline of contentions.
·     On 2 June 2017, Mr O'Shannessey wrote back to Mr Stanley asserting that the requested documents could not be provided to Avant without the plaintiff being in contempt of court.
·     On 16 June 2017, Mr Stanley wrote another letter in which he said, "In order to engage the policy for this matter Avant maintains that documentation is required that indicates that the criminal proceedings in the case of Nelda Edwards and the criminal investigation in relation to the death of Dr Edwards' father arise from the provision of paid or unpaid healthcare. Avant is advised that a copy of the Indictment should provide details relevant to it's [sic] consideration of indemnity for Dr Edwards. In the absence of this information indemnity will be continue [sic] to be declined in the case of the investigation concerning Dr Edwards' father and withdrawn in the case of Nelda Edwards."
·     Over the following seven months, Avant made no new requests for documents, and the plaintiff's solicitors did not provide any. Then on 17 January 2018 Mr O'Shannessey sent Mr Stanley a copy of a transcript of a police interview with the plaintiff that took place on 28 April 2016. In that interview the plaintiff told the officers a lot about the circumstances leading up to his mother's death. In particular he gave them information to the effect that she wanted to die, and information about medication that he said he administered for the purpose of treating her. From one point of view, his answers to the officers' questions were consistent with his innocence. From another point of view, some of his answers could be taken to support a contention that he had a motive to bring his mother's life to a merciful end.
·     After further correspondence, Ms Lewis of Avant, an assistant claims manager, sent an email on 7 June 2018 requesting a copy of the autopsy report for the plaintiff's mother.
·     On 25 June 2018, Mr O'Shannessey wrote back saying that the plaintiff had not received a copy of that document.
·     On 29 August 2018, he wrote again saying that the plaintiff had not been provided with a copy of that report, but also saying that it would not be possible to provide it without Avant providing the undertaking that he had been seeking.
·     On 4 September 2018, Ms Lewis wrote saying that Avant was unable to determine whether the plaintiff provided healthcare to his mother and was therefore "unable to determine indemnity" under the policy. She continued, "If in the course of the criminal proceedings, a finding is made by the court that healthcare was provided to Mrs Edwards, Dr Edwards would be entitled to seek from Avant the reimbursement of his reasonable legal expenses incurred in defending the criminal prosecution." She apparently did not understand that findings of fact by juries are not revealed in criminal trials except in very rare cases where special verdicts are requested and provided; that the plaintiff's criminal trial would inevitably be a trial by jury; and that the only findings of fact that were likely ever to be notified to Avant would be findings made by the trial judge for sentencing purposes if the plaintiff were found guilty.
·     On 5 September 2018, Ms Lewis wrote again, confirming that Avant would not provide the undertaking requested by the solicitors, and requesting further information including the "Police Facts Sheet" (which probably did not exist), the indictment, and expert reports served by the Crown.
·     On 17 September 2018, Mr O'Shannessey wrote to Ms Lewis and sent her a report from a consultant physician, Dr Ringrose, which his firm had obtained for the purpose of defending the murder charge. That report was favourable to the plaintiff. However Avant remained uninformed as to the expert evidence and other evidence available to the Crown and intended to be relied upon at the trial.
·     On 2 October 2018, in another long letter, Ms Lewis requested copies of the documents that the plaintiff's solicitors had provided to Dr Ringrose, particularly their letter of instructions and a series of questions that were addressed in his report. She also asked for copies of "the relevant medical and claim file information" and "the prosecutor's brief of evidence". It appears that, although that letter was dated 2 October 2018, it was not emailed until the following day, about three hours before the writ was issued.

I have omitted from this chronology a great deal that was written about the asserted impropriety of providing documents disclosed by prosecutors and the need or lack of need for an undertaking from Avant. There was a very unfortunate stalemate. By the time the writ was issued, Avant had not seen any of the Crown's evidence other than the transcript of the police interview. Without knowing what prosecution evidence contradicted the plaintiff and Dr Ringrose, Avant was not in a position to make an adequately informed decision as to whether the plaintiff's conduct fell within the scope of the policy.
Avant has received little further information since the action was commenced. However, it has received copies of three affidavits prepared in 2016 for the purpose of coronial proceedings – two sworn by a toxicologist and one sworn by the State Forensic Pathologist, giving details of the autopsy examination of the plaintiff's mother. However the extent of the undisclosed prosecution evidence remains unclear.

Election

The plaintiff contends that, by sending the email of 30 March 2017 saying "Cover is provided under Part B, Clause 6", the insurer irrevocably elected to accept the plaintiff's claim on the policy. In par 39 of the statement of claim it is pleaded that at the relevant time the insurer "had a choice between accepting the Plaintiff's Policy Claim (with or without conditions), deferring its decision on the Plaintiff's Policy Claim pending receipt of further documents or information, or denying the Claim".
The situation in which the doctrine of election applies was explained by Stephen J, with whom McTiernan ACJ agreed, in Sargent v ASL Developments Ltd (1974) 131 CLR 634 as follows, at 641:
"The doctrine of election as between two inconsistent legal rights is well established but certain of its features are not without their obscurities. The doctrine only applies if the rights are inconsistent the one with the other and it is this concurrent existence of inconsistent sets of rights which explains the doctrine; because they are inconsistent neither one may be enjoyed without the extinction of the other and that extinction confers upon the elector the benefit of enjoying the other, a benefit denied to him so long as both remained in existence."
Similarly, Mason J said in that case, at 655:
"A person is said to have a right of election when events occur which enable him to exercise alternative and inconsistent rights, ie when he has the right to determine an estate or terminate a contract for breach of covenant or contract and the alternative right to insist on the continuation of the estate or the performance of the contract. It matters not whether the right to terminate the contract is conferred by the contract or arises at common law for fundamental breach – in each instance the alternative right to insist on performance creates a right of election."
That case concerned a situation in which the appellants had two inconsistent rights in relation to a contract for the purchase by them of certain land – a right to rescind the contract and a right to affirm it and insist on performance by the vendor. This is not a case in which the insurer had two or more inconsistent legal rights. If the plaintiff provided his mother with "Healthcare or Unpaid Healthcare" at the relevant time, the insurer had a contractual duty to indemnify him. If not, the insurer had no contractual duty to indemnify him. If the insurer concluded, on the basis of the information available to it, that it was required to indemnify the plaintiff, and commenced reimbursing his legal fees and expenses, it retained the right to change its mind upon the receipt of additional information in accordance with cl 17.13 of the policy, which is set out above at [18]. The insurer simply cannot be regarded as having made a choice between a right to indemnify and a right not to indemnify. It may or may not have had a duty to indemnify the plaintiff, but it certainly did not have a right to choose to indemnify him.
The plaintiff's submissions based on the doctrine of election were misconceived, and must fail.

Waiver

The plaintiff contends that, by sending the email of 30 March 2017, the insurer waived its right to insist upon the production of documents in two categories. The first category is described in par 49 of the statement of claim as "any additional documents that were not new documents". The second category relates to clinical documents of the nature requested by Mr Stanley in his email of 14 March 2017.
The word "waiver" is used in a variety of senses. It is sometimes used "in connection with a party not insisting upon a term of a contract which is identified as a term for that party's sole benefit": Mulcahy v Hoyne (1925) 36 CLR 41 at 55 per Isaacs J, and at 58 per Starke J; Gange v Sullivan (1966) 116 CLR 418 at 429 per Barwick CJ; Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57, 238 CLR 570, per Gummow, Hayne and Kiefel JJ at [52]. That is the sense in which the word has been used in this case. In my view the plaintiff's contentions as to waiver must be rejected.
First of all, it is clear that the email of 30 March 2017, in context, did not amount to a representation that the insurer would not exercise its contractual rights to require further information and documents. It is true that it had made arrangements for the retainer of the firm Murdoch Clarke and for invoices from that firm to be paid, but it had undertaken only minimal preliminary enquiries as to whether it was obliged to indemnify the plaintiff. The email of 30 March 2017 said that the insurer's "acceptance of this claim remains subject to the terms and conditions of the Policy".
It is not clear how much Mr O'Shannessey told Ms Fitzgerald about the Crown case against the plaintiff or his defence when they had their initial telephone conversation on 7 February 2017. Mr Stanley's subsequent request for consultation notes, medical records and prescriptions suggests that she was told very little. It can be inferred that she was told that the plaintiff had treated his mother, that she had subsequently died, and that the Crown were asserting that he murdered his mother by administering medication. It is clear that the personnel of Avant knew so little about the Crown's contentions and the circumstances of the mother's death that the email of 30 March 2017 could not reasonably be interpreted as an unequivocal or unqualified promise to indemnify the plaintiff.
Clause 17.13, which is set above at [18], provided that the acceptance of a request for indemnity could be subsequently withdrawn if the policy did not cover the request for indemnity. Clause 17.8.2, which is set out above at [17], required the plaintiff to give the insurer all documents that it reasonably required and to co-operate fully with it. It must follow that the insurer's advice that cover was provided did not amount to a representation that the insurer would not insist on its contractual rights as to the provision of further documentation, including copies of documentation already in existence, and as to co-operation by the plaintiff.
Furthermore, the doctrine of waiver could only operate in this instance in relation to a contractual provision that was inserted for the sole benefit of the insurer. The provisions of the policy as to co-operation and the provision of documents are plainly not there for the purpose of benefiting the insurer, but for the purpose of facilitating a correct decision as to whether the insurer is obliged to indemnify the insured. That is to say, the provisions may work for the benefit of the insured or for the benefit of the insurer, depending on the merits of the insured's claim.
It follows that the plaintiff's contentions as to waiver must be rejected.

Estoppel

In substance the plaintiff contends that, by the email of 30 March 2017, the insurer promised to pay the legal costs of defending the murder charge; that he acted to his detriment in reliance upon that promise; and that the insurer is therefore estopped from resiling from that promise to indemnify him.
It is clear however that the email of 30 March 2017 should not be interpreted as an unqualified representation that the insurer would indemnify the plaintiff. Rather, it amounted to a representation that the insurer would indemnify the plaintiff so long as it was satisfied, and remained satisfied, that the plaintiff was entitled to indemnity under the policy. The plaintiff's contentions as to estoppel are based on a misconception that the insurer promised on 30 March 2017 that it would indemnify him in accordance with the terms of the policy. As a result of that misconception, his contentions relating to estoppel must be rejected.
It is pleaded in the statement of claim that, in reliance upon the promise to indemnify said to have been made in the 30 March 2017 email, the plaintiff acted to his detriment by (a) expending "considerable personal resources" in having his solicitors correspond with the insurer and its parent company regarding his claim; (b) not seeking to engage and brief appropriate junior counsel in preparation for the murder trial; and (c) having his solicitors provide the insurer with "initial advice" on 3 April 2017 and subsequent updates as to the progress of the criminal proceedings.
As to (b), there was no evidence at the trial to support the allegation that the plaintiff decided not to independently engage and brief appropriate junior counsel.
As to (a), the evidence establishes quite clearly that the work done by the plaintiff's solicitors in corresponding with the insurer was undertaken because the insurer was not reimbursing the plaintiff for legal fees and expenses, not because the plaintiff assumed that the insurer would be reimbursing him for those fees and expenses.
As to (c), it is true that the plaintiff's solicitors wrote to the insurer on 4 April 2017 outlining the progress that had been made in relation to the defence of the murder charge. The letter was four pages long. In it, the costs of defending the murder charge were estimated at $350,000. There were a few subsequent shorter letters in which the insurer was informed of developments as the case progressed towards trial. After the first letter, it is clear that the plaintiff, rather than relying on some perceived promise that the insurer would indemnify him, was seeking to overcome an apparent unwillingness of the insurer to indemnify him. The relief sought by the plaintiff on the basis of estoppel is out of all proportion to any detriment that he may have suffered in having to pay for his solicitors writing a four-page letter. When a remedy is available on the basis of promissory estoppel, it must be proportionate to the detriment: Commonwealth v Verwayen (1990) 170 CLR 394 per Brennan J at 429, and per Deane J at 441; Sidhu v Van Dyke [2014] HCA 19, 251 CLR 505, at [83]-[84].
For these reasons, I reject the plaintiff's contentions as to estoppel.

Breach of the insurer's duty of utmost good faith

By virtue of s 13(1) of the Insurance Contracts Act 1984 (Cth), there is implied in every contract of insurance "a provision requiring each party to it to act towards the other party, in respect of any matter arising under or in relation to it, with the utmost good faith".

Section 14(1) of that Act provides:
"(1) If reliance by a party to a contract of insurance on a provision of the contract would be to fail to act with the utmost good faith, the party may not rely on the provision."
The plaintiff has pleaded that the insurer breached its duty of utmost good faith in two respects. The first concerns its refusal to provide the undertaking sought by his solicitors in relation to documents disclosed by the prosecuting authorities. For the reasons stated above at [11]-[16], there was nothing inappropriate about the insurer declining to give the undertaking that had been sought. I think it is worth observing at this stage that the breach of such an undertaking might not have had any legal consequences. A breach of an undertaking to a court constitutes a contempt, and a breach of a solicitor's undertaking can give rise to disciplinary proceedings, but a breach of an insurer's undertaking given to a solicitor might lead only to disapproval.
The second asserted breach of the duty of utmost good faith relates to the insurer's "failure to confirm indemnity under the Policy, reimburse the Plaintiff's Pre March 2017 Legal Expenses or pay any legal expenses incurred from 1 March 2017 in relation to the Plaintiff's defence of the Murder Charge". The plaintiff's contentions as to this aspect of his claim, as pleaded, can be summarised as follows:
·     The insurer has an obligation to meet his legal fees and other expenses incurred in his defence of the murder charge, subject to his production of material that establishes he was providing healthcare.
·     The transcript of the police interview and the report of Dr Ringrose establish that he provided healthcare by attending his mother, observing her, monitoring her blood pressure, heart rate and breathing, and administering medication.
·     By not making any payments after receiving the police interview and the report of Dr Ringrose, the insurer has breached its duty of good faith.
·     He is therefore entitled to orders in the nature of specific performance.
It is clear that the duty of utmost good faith requires an insurer to make a timely decision to accept or reject a claim for indemnity under a policy once all relevant material for the making of a decision on the claim is at hand: AMP Financial Planning Pty Ltd v CGU Insurance Limited [2005] FCAFC 185, 146 FCR 447 per Emmett J, with whom Moore J agreed, at [91]. However the plaintiff in this case did not make available all the material that the insurer reasonably required before making a decision. The transcript of the police interview and the report of Dr Ringrose appear to have been exculpatory material. Repeated requests for documents and information relating to the Crown case were not complied with, apparently as a result of a misunderstanding about the restrictions on the dissemination of material disclosed by prosecuting authorities. The insurer needed to receive and consider the material disclosed by the Crown in order to understand the nature and strength of any allegations or contentions that were inconsistent with the proposition that the plaintiff provided his mother with healthcare or unpaid healthcare prior to her death.
The delay on the part of the insurer was reasonable. It was not capricious. The evidence does not suggest any ulterior motive. In all the circumstances, I am not satisfied that the insurer at any time acted otherwise than with the utmost good faith.

Conclusion

For these reasons, there must be judgment for the defendant.