FEDERAL COURT OF AUSTRALIA
Evans v Davantage Group Pty Ltd (No 2) [2020] FCA 473
File number: VID 982 of 2018 Judge: BEACH J Date of judgment: 9 April 2020 Catchwords: GROUP PROCEEDINGS – application seeking respondent’s insurance documents – practice and procedure – doubts as to respondent’s ability to meet judgment – primary cover – excess layer cover – confidentiality – capacity to engage in a meaningful mediation – potential settlement – power to order production of insurance documents under s 33ZF of Federal Court of Australia Act 1976 (Cth) – modern case management theory – ss 37M and 37P – relevance of insurance documents to s 33V settlement approval process – application refused Legislation: Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) ss 4, 5
Federal Court of Australia Act 1976 (Cth) ss 33V, 33ZF, 33ZG, 37M, 37P
Cases cited: Beneficial Finance Corporation Limited v Price Waterhouse (1996) 68 SASR 19
BMW Australia Ltd v Brewster; Westpac Banking Corporation v Lenthall (2019) 94 ALJR 51
C.E. Heath Casualty and General Insurance Ltd v Pyramid Building Society (in liquidation) [1997] 2 VR 256
CGU Insurance Ltd v Blakeley (2016) 259 CLR 339
Commonwealth Bank of Australia v ACN 076 848 112 Pty Limited [2015] NSWSC 666
Evans v Davantage Group Pty Ltd [2019] FCA 884
J.N. Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR 432
Kirby v Centro Properties Limited [2009] FCA 695
Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2019] QSC 250
Rodolfo Lopez v Star World Enterprises Pty Ltd [1997] FCA 454
Simpson v Thorn Australia Pty Ltd trading as Radio Rentals (No 4) [2019] FCA 1229
Date of hearing: 14 February 2020 Registry: Victoria Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 112 Counsel for the Applicant: Mr BF Quinn QC and Ms J Collins Solicitor for the Applicant: Baker McKenzie Counsel for the Respondent: Mr MI Borsky QC and Dr CO Parkinson Solicitor for the Respondent: Herbert Smith Freehills Counsel for the First Intervener: Mr MW Thompson QC and Ms V Blidman Solicitor for the First Intervener: Moray & Agnew Lawyers Counsel for the Second Intervener: Mr JP Slattery SC and Mr J Corbett Solicitor for the Second Intervener: Norton Rose Fulbright Australia ORDERS
VID 982 of 2018 BETWEEN: BRETT WILLIAM EVANS
Applicant
AND: DAVANTAGE GROUP PTY LTD (ACN 161 967 166)
Respondent
AAI LIMITED
First Intervener
INSURANCE AUSTRALIA LIMITED, DUAL AUSTRALIA PTY LTD AND BERKLEY INSURANCE CO. (TRADING AS BERKLEY INSURANCE AUSTRALIA)
Second Intervener
JUDGE:
BEACH J
DATE OF ORDER:
9 APRIL 2020
THE COURT ORDERS THAT:
1.Insurance Australia Limited, Dual Australia Pty Ltd and Berkley Insurance Co. (trading as Berkley Insurance Australia) be given leave to intervene in the applicant’s interlocutory application seeking production of the respondent’s insurance documents (the insurance application).
2.AAI Limited be given leave to intervene in the insurance application.
3.The insurance application be dismissed.
4.The applicant’s and the respondent’s costs of and incidental…
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- Case
- [2020] FCA 473
- Decision Date
CaseChat Overview and Summary
The court considered the statutory powers under section 33ZF of the Federal Court of Australia Act 1976 (Cth) and the principles of modern case management under sections 37M and 37P. The court also examined the relevance of the insurance documents to the potential settlement and the broader implications for the collective action process. The court concluded that while it had the power to make the orders sought, the statutory provisions did not provide a source of power for ordering the production of insurance documents in this context. The court further held that the applicant's desire to obtain the documents was not compelling enough to justify breaching the confidentiality and capacity principles relevant to mediation and settlement processes.
The court dismissed the application, noting that the primary insurer had denied cover, and the excess insurers had generally denied cover, limiting the potential utility of the documents. The court also granted leave to several insurance companies to intervene in the proceedings, highlighting their interest in the outcome of the application. The court ordered that the costs of the application be borne by the applicant and the respondent, with the interveners' costs to be taxed if not agreed upon.
In summary, the court refused the application for the production of insurance documents, emphasizing the balance between the procedural rights in group proceedings and the need to protect confidentiality and capacity in the settlement process.
Orders
Orders of the court
1. Insurance Australia Limited, Dual Australia Pty Ltd and Berkley Insurance Co. (trading as Berkley Insurance Australia) be given leave to intervene in the applicant’s interlocutory application seeking production of the respondent’s insurance documents (the insurance application).
2. AAI Limited be given leave to intervene in the insurance application.
3. The insurance application be dismissed.
4. The applicant’s and the respondent’s costs of and incidental to the insurance application be their costs in the cause.
5. The applicant pay the interveners’ costs of and incidental to the insurance application to be taxed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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