Pout v Shipway
[2024] ACTSC 324
•22 October 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Pout v Shipway |
Citation: | [2024] ACTSC 324 |
Hearing Date: | 22 October 2024 |
Decision Date: | 22 October 2024 |
Before: | Mossop J |
Decision: | See [21] |
Catchwords: | PRACTICE AND PROCEDURE – PRODUCTION AND INSPECTION – Application to compel compliance with Notice for Non-Party Production – Notice issued to insurer for the defendant – response from insurer almost entirely inappropriate – it included statements that were self-evidently false – it will not really cost $80,000,000.00 to comply with the Notice – consideration of categories of items sought – most categories do not warrant the making of an order for production – orders made to compel production in limited categories |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 664, 665 |
Cases Cited: | Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 |
Parties: | Jason Leslie Pout ( Plaintiff) Robert Shipway ( Defendant) |
Representation: | Counsel WDB Buckland ( Plaintiff) J Moffett ( Defendant and AAI Limited trading as GIO) |
| Solicitors United Legal ( Plaintiff) Mills Oakley Lawyers ( Defendant) | |
File Number: | SC 480 of 2022 |
MOSSOP J:
1․This is an application in proceeding brought by the plaintiff for orders to enforce compliance with a Notice for Non-Party Production served on the defendant’s insurer, AAI Limited, which trades as GIO.
2․The application was brought pursuant to r 665 of the Court Procedures Rules 2006 (ACT). Counsel for GIO pointed to the process that was required in relation to Notices for Non-Party Production under r 664. This process has the effect that if the recipient of a Notice for Non-Party Production (or another party to the proceedings) objects to production of documents pursuant to the Notice, that person must give notice of the objection to the applicant for the Notice. If required by the applicant for the Notice, the respondent who objects can be required to file and serve an affidavit on the applicant identifying the document which the person objects to, and the reasons why there is a claim of privilege or other objection. Once the objection is made by notice to the applicant, then, whether or not the applicant requires an affidavit to be filed and served, the person objecting need not produce the document and the applicant (or another party or the respondent to the Notice) is then in a position to apply for orders from the court in relation to the claim or objection.
3․In the present case, no affidavit was required to be filed, and the application is not identified as being one under r 664(4). Rather, it was an application under r 665, which applies where there is a failure to produce a document stated in a Notice. Although GIO initially argued that there had been no non-compliance with the Notice because of the objection under r 664, ultimately it was accepted that there was at least a brief period after production was required pursuant to the Notice and before the notice objecting to production was given in which there was a failure to produce documents and, hence, that was sufficient to enliven r 665, the rule under which the application was brought.
4․Ultimately, following submissions, the basis for many of the items in the schedule to the Notice for Non-Party Production fell away, as I will indicate later. However, the filing of the application was prompted by the nature of the response given by a claims officer at GIO. That response was almost entirely inappropriate. For example, in relation to those parts of the Notice which sought copies of insurance policies, the letter did not take the point that the terms of the insurance policies were not relevant to a fact in issue. Rather, it asserted that it would be so difficult to identify the policies of named customers that:
We calculate reviewing our files to comply with the notice will take in excess of 3,000,000 man hours at a cost exceeding $80,000,000.00. We consider compliance with the Notice is therefore infeasible.
5․This statement was self-evidently false. Counsel appearing for GIO at the hearing did not seek to defend the statement. It is a statement which reflects poorly on an institutional litigant such as GIO and suggests that claims officers need additional training if they are to correspond in relation to court notices, such as that in the present case. The balance of the letter objected to production on grounds which mostly lacked merit.
6․Notwithstanding the lack of merit in GIO’s response, it was articulated today by counsel appearing for GIO that there were nonetheless proper grounds upon which to resist the making of further orders by the court in relation to the documents identified in the Notice.
7․In relation to each of the categories within the Notice for Non-Party Production, my conclusions are as follows.
8․So far as category 1 is concerned, it is appropriate to make an order requiring production of claims forms by persons other than the plaintiff lodged with the insurer that relate to the incident that occurred on 23 December 2019 at 1083 Dicks Creek Road, Gundaroo NSW 2620.
9․So far as category 2 is concerned, counsel for GIO said, upon instructions, that there were no additional documents, beyond those that the defendant had produced, that GIO were able to produce. The plaintiff indicated that he wished to have any documents containing instructions that were issued to the investigator who prepared the investigation report that was in fact disclosed. Those documents were not within the scope of category 2; however, over the luncheon adjournment, the relevant letter was disclosed to the plaintiff.
10․So far as categories 3 and 4 are concerned, counsel for GIO said, upon instructions, that there were no additional documents, beyond those disclosed by the defendant, that GIO were able to produce.
11․So far as categories 5 to 9 are concerned, those relate to insurance policies of different sorts issued to the defendant or a partnership of which he is alleged to have been a member, or relating to the relevant address at the time of the incident. Whether or not the defendant is insured may be of interest to the plaintiff, but that is not a fact in issue for the purposes of the proceedings. Counsel for the plaintiff indicated that disclosure of the insurance policy may have the effect of disclosing a past claims history. I do not consider that this is a significant enough likelihood to warrant the making of an order for production of documents within categories 5 to 9. Rather, I will consider any further, more targeted order, if that is sought.
12․Categories 10 and 12 cover items which would be covered by either advice or litigation client legal privilege, although they are expressed to not include anything which is the subject of such privilege. It was suggested that privilege might have been waived over, for example, a document such as the instructions provided to the investigator referred to in relation to category 2, which, in fact, has now been produced. The possibility of that seemed remote, given that copies of the document over which privilege has been waived but which are provided to the lawyers may still retain the privilege, even if the original did not: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501.
13․Category 11 is concerned with correspondence between the insurer and InPrivate Law, a law firm acting for the defendant, but only if those documents are not covered by client legal privilege. Insofar as that correspondence relates to whether or not indemnity would extend to the defendant, it does not relate to a fact in issue; however, there is a possibility that the correspondence may contain admissions which are of some use to the plaintiff.
[The parties were heard as to the form of the orders and costs]
14․In relation to costs, the plaintiff submitted that the appropriate order was that the costs of the application be the plaintiff’s costs in the cause or, alternatively, that it be both party’s costs in the cause. The plaintiff submitted that the approach taken in the GIO letter to which I have referred earlier in my reasons was such that it was necessary for it to make the application.
15․The position of counsel for the defendant was, ultimately, that the plaintiff should pay the defendant’s costs because of two factors:
(a)first, that counsel had only been briefed in order to respond to a contempt application, which was abandoned at the hearing, with the effect of increasing the defendant’s costs; and
(b)second, that the defendant had had substantial success in avoiding any order made in relation to a majority of the categories that were set out in the Notice for Non-Party Production.
16․Counsel for the plaintiff accepted the factual premise of the submissions made on behalf of the defendant, namely, that counsel was only briefed because of the existence of the contempt application.
17․There is, in this case, certainly considerable merit in the defendant’s position that it had substantial success in relation to the items set out in the Notice for Non-Party Production. Careful consideration by a solicitor who drafts a Notice for Non-Party Production will tend to avoid matters having to be resolved by the court in the manner that this was.
18․I also accept that the defendant’s costs will have been increased as a result of the maintenance of the contempt application, which, upon a careful analysis of the operation of the Rules, was not an order which was available. Once again, careful attention by those who draft applications in proceeding to the jurisdictional basis for the orders sought will avoid placing their clients in positions where they are required to abandon those orders at the last minute.
19․However, it is also very significant in relation to costs that the GIO letter which was originally sent had the features which I referred to earlier in my reasons. That was a significant contributing factor to the escalation of matters in a way that they should not have. There was a reasonably constructive response to that letter from the solicitors for the plaintiff, but that reasonably constructive response went nowhere.
20․In the circumstances, I had considered that, given that there was plenty of criticism to go around in relation to the conduct on both sides, perhaps this was a case in which there should be no order as to costs. However, ultimately, as both parties submitted, at least in the alternative, that costs should be costs in the cause, I will make that order so that, at the end of the day, the party who is ultimately successful has the opportunity to recover the costs of this regrettable exercise.
21․The orders of the Court are:
1.The proper officer of AAI Limited trading as GIO is to produce to the solicitors for the plaintiff within 14 days:
1. Claim forms relating to the incident that occurred on 23 December 2019 at 1083 Dicks Creek Road, Gundaroo NSW 2620 relating to claims made by persons other than the plaintiff.
2. Correspondence between GIO and InPrivate Law insofar as it relates to the incident that occurred on 23 December 2019 at 1083 Dicks Creek Road, Gundaroo NSW 2620 which are not the subject of legal professional privilege.
2.Costs of the application in proceeding dated 18 September 2024 are the plaintiff’s and the defendant’s costs in the cause.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 7 November 2024 |
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