FEDERAL COURT OF AUSTRALIA

AMP Financial Planning Pty Ltd v CGU Insurance Limited [2004] FCA 1196

Federal Court Rules, O 15 r 8

Telstra Corporation v BT Australia (1998) 85 FCR 157 at 166 cited

Sevic v Roarty (1998) 44 NSWLR 287 at 301cited

Australian Competition and Consumer Commission v Telstra Corporation Ltd (2000) 96 FCR 317 at 322 cited

AMP FINANCIAL PLANNING PTY LTD v CGU INSURANCE LTD

V465 of 2003

HEEREY J

3 SEPTEMBER 2004

MELBOURNE

THE COURT ORDERS THAT:

1                     The applicant’s motion by notice dated 30 August 2004 is dismissed;

2                     The applicant pay the respondent’s costs of the motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

3                     The applicant AMP Financial Planning Pty Ltd (AMPFP) has brought a motion seeking discovery from the respondent CGU Insurance Ltd (CGU) of:

 “…all documents relevant to its consideration of the applicant’s claims for indemnity under the insurance policies in issue in this proceeding, including all internal notes, emails, memoranda, advice, correspondence, instructions and communications between the respondent and its lawyers prior to the commencement of this proceeding.”

I take it that what is sought is an order for particular discovery under O 15 r 8 of the Federal Court Rules. 

4                     The only evidentiary basis submitted to support the contention that there are further documents which should be discovered is an exchange of correspondence between the parties' solicitors.  Relevantly, in a letter of 16 August 2004 AMPFP's solicitors said that certain documents were relevant and should immediately be discovered, namely:

“All of CGU's internal notes, emails, memoranda, relevant to AMPFP's claim for indemnity.”

5                     By a letter of 17 August CGU’s solicitors advised as to this request that:

“All our client's relevant communications, including the documents within in each claim file for each claimant investor, have been discovered.  Those documents that are not the subject of legal professional privilege have been made available for inspection by your office.”

6                     Even though O 15 r 8 contemplates that an order for particular discovery may be made not only on the basis of evidence but also from the nature of the circumstances of the case or from any document filed in the proceeding, I am not satisfied that AMPFP has made out a case that there are, or are likely to be, in CGU’s possession documents of the kind indicated which have not been discovered.  I am not able to put the special and limited meaning that AMPFP would put on the term "communications", as it appears in CGU's solicitors’ letter.

7                     Perhaps more importantly, I am not persuaded that documents of this nature - even if discovered - are relevant.  It seems to me plain that CGU's state of mind is not in issue in these proceedings.  The state of mind of AMPFP is because, by pars 21 and 22 of its amended statement of claim it alleges that it was induced by representations of CGU to act in a particular way.  However, the question as to whether AMPFP acted reasonably in settling with the claimants, as it alleges in par 22A, will be resolved on an objective examination of the circumstances, including communications which passed between CGU and AMPFP, and more particularly those identified in par 16A of CGU's amended defence.  The states of mind of CGU's officers when they made those communications seem to me things which could not affect the reasonableness or otherwise of AMPFP's reaction to them.

8                     As to privilege, for the reasons already mentioned, I am satisfied that no issue waiver arises, see Telstra Corporation v BT Australia (1998) 85 FCR 157 at 166.  Nor can there be any waiver on the basis of the statement provided pursuant to a direction of the court, see Sevic v Roarty (1998) 44 NSWLR 287 at 301 and Australian Competition and Consumer Commission v Telstra Corporation Ltd (2000) 96 FCR 317 at 322. 

9                     The motion will be dismissed with costs.

Associate:

Dated:              13 September 2004