In Evans v Davantage Group Pty Ltd (No.2) [2020] FCA 473 (9 April 2020) the court refused the applicant’s application for production of various insurance documents that may respond to any of the applicant’s and group members’ claims made against the respondent.
The applicant relied on ss33ZF(1), 37M and 37P of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The insurance documents were sought for laudable objectives, in particular so that the applicant better inform himself on a range of issues such as whether it was commercially viable to prosecute the group proceeding to judgment and whether it was appropriate to settle the matter and if so for what quantum.
The court refused the application. Beach J explained (at [4]): “…resort to the mantra of contemporary case management theory and the innovative properties of s33ZF(1) do not justify my acceding to the applicant’s application. As to the latter, there has recently been a set back in the evolutionary development of s33ZF(1). As to the former, case management practices of the type encouraged by ss37M and 37P are designed to produce litigation which is run efficiently and fairly in the interests of all parties. But such provisions are not designed to distort the playing field so as to confer an asymmetric commercial advantage in favour of one party at the expense of another…The protective role reflected in provisions such as s33ZF(1) is there to ensure that each group member’s claim, given their non-party and presumed absent status, is litigated and resolved as well as or as close to as well as if they had been a named applicant with their own legal representation. Further, the protective role is to be viewed in the context of the pursuit of a grouped procedure to the advantage and efficiency of all. By ‘all’, I mean the applicant, the group members, the respondent and the Court. But the protective role is not designed to put a respondent at an asymmetric commercial disadvantage. It is not designed to give a group member any greater rights vis-a-vis a respondent, other than ones that necessarily flow from the grouping of multiple claims per se, than they would have had if they had separately pursued individual proceedings against that respondent. Recourse to the protective role is not to be applied like some thick layer of varnish to gloss over the flawed substratum of the applicant’s arguments.”
The court held it had the power to order production of the documents under s23 of the FCA Act but declined to exercise its power to do so (at [5], [16] and [111]-[112]).
The judgement contains reference to legal principles establishing that insurance policies are not normally discoverable where they are not relevant to the determination of a fact in issue (at [46]) and that case management principles of themselves do not justify an order for production of an insurance policy that was not otherwise discoverable in accordance with the Rules of Court (at [77]-[80] and [95]-[97]).
Dan Star QC is a Senior Counsel at the Victorian Bar, ph (03) 9225 8757 or email danstar@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au.
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