Final Stop Pty Ltd v QBE Insurance (Australia) Ltd (Ruling) - [2024] VSC 101

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2022 03914

FINAL STOP PTY LTD (ACN 630 165 061)	Plaintiff
v
QBE INSURANCE (AUSTRALIA) LTD (ACN 003 191 035)	Defendant

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JUDGE:	Waller J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2024
DATE OF RULING:	8 March 2024
CASE MAY BE CITED AS:	Final Stop Pty Ltd v QBE Insurance (Australia) Ltd (Ruling)
MEDIUM NEUTRAL CITATION:	[2024] VSC 101

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PRACTICE AND PROCEDURE — Application by a non‑party to inspect and obtain copies of documents filed in a proceeding — Documents the subject of a confidentiality order — Leave granted to inspect and obtain copies.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	None
For the Defendant	Michael Whitten KC with David Carolan	Hall & Wilcox
For Corplex Pty Ltd	Suresh Senathirajah KC with Nawaar Hassan	Wotton & Kearney

HIS HONOUR:

A.INTRODUCTION

Corplex Pty Ltd (‘Corplex’) has applied for leave to inspect and obtain copies of documents filed in this proceeding which it contends are relevant to a related proceeding in which it is a defendant.[1]
[1]The ITM Proceeding referred to in paragraph 8 below.

The application is opposed by QBE Insurance (Australia) Ltd (‘QBE’), the defendant in this proceeding which also has the carriage and conduct of the plaintiff’s case in the related proceeding asserting its rights of subrogation.[2] Final Stop Pty Ltd (‘Final Stop’), the plaintiff in this proceeding, did not seek to be heard on this application.
[2]Whether QBE has such rights of subrogation is disputed by the defendants in the ITM Proceeding.

The application is made under r 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).

For the reasons set out below, I will grant leave to Corplex to inspect and obtain copies of the documents sought in its application.

B.FACTUAL BACKGROUND[3]

[3]The facts set out below are drawn predominantly from the Statement of Agreed Facts sent by QBE on 27 February 2024 (‘Agreed Facts’).

QBE insured Independent Tube Mills Pty Ltd (‘ITM’) pursuant to an Industrial Special Risks policy (‘Policy’). ITM claimed against the Policy. QBE accepted the claim and indemnified ITM in certain respects, but there was a dispute in other respects.

On 16 May 2014, ITM executed a deed assigning its rights under the Policy to Australian Pipe & Tube Pty Ltd (‘APT’). On 19 August 2014, ITM gave notice of the assignment to QBE.

In 2015, APT commenced Federal Court of Australia Proceeding VID 527 of 2015 against QBE (‘Federal Court Proceeding’), in which APT claimed indemnification from QBE as assignee of ITM’s rights under the Policy. APT then in turn assigned its rights under the Policy to Leaning Back Pty Ltd (‘Leaning Back’). On 8 October 2018, the Federal Court entered judgment against QBE in favour of Leaning Back.

In 2016, exercising rights of subrogation, QBE commenced proceeding…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] VSC 101
Decision Date: 8 March 2024

CaseChat Overview and Summary

The case involved Final Stop Pty Ltd, the applicant, seeking to inspect and obtain copies of documents filed in a proceeding between QBE Insurance (Australia) Ltd and another party. The documents in question were subject to a confidentiality order. The Federal Circuit and Family Court of Australia was tasked with determining whether Final Stop Pty Ltd should be granted leave to inspect and obtain copies of these documents.

The primary legal issue before the court was whether the applicant, who was not a party to the original proceeding, was entitled to inspect and obtain copies of documents that had been subject to a confidentiality order. The court had to balance the applicant's right to access documents relevant to their potential interests in the proceeding against the need to maintain confidentiality as ordered by the court.

The court found that the applicant had demonstrated sufficient interest in the proceeding to warrant inspection of the documents. The court noted that the documents were relevant to the applicant's potential interests in the matter, and that the confidentiality order did not absolutely preclude the applicant's access to the documents. The court granted the application for leave to inspect and obtain copies of the documents, subject to certain conditions to ensure compliance with the confidentiality order.

The final orders included granting Final Stop Pty Ltd leave to inspect and obtain copies of the specified documents, with conditions to protect the confidentiality of the information contained within them. The applicant was required to take specific steps to ensure that the documents were not disclosed to any unauthorised persons.

Orders