FEDERAL COURT OF AUSTRALIA

Darshn v Avant Insurance Limited [2021] FCA 706

ORDERS

THE COURT ORDERS THAT:

1.    Within 14 days, the applicant and the first respondent file any agreed minute of proposed orders to give effect to these reasons and in relation to costs.

2.    If the applicant and the first respondent cannot agree, then within 21 days, each of the applicant and the first respondent file and serve a minute of proposed orders and an outline of submissions (of no more than five pages) in support of those orders.

3.    The second respondent have liberty to apply, within 28 days, if it wishes to apply for an order for costs against the first respondent.

4.    Paragraph 7 of the orders made on 11 May 2021 be vacated.

5.    Subject to further order, for a period of 10 days, the Court’s reasons for judgment are to remain confidential to the applicant, the first respondent and the legal representatives of the second respondent, and not to be published to the public.

6.    Within seven days, the applicant and the first respondent are to inform the chambers of Justice Moshinsky whether there is any concern as to confidentiality as to any part of the reasons for judgment.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The applicant (Dr Darshn) is a registered medical practitioner practising as a cosmetic surgeon. In the period January 2015 to January 2018, Dr Darshn performed breast augmentation surgery (BAS) at premises owned or occupied by The Cosmetic Institute Pty Ltd (TCI) or one of its subsidiaries.

2    Dr Darshn held professional indemnity insurance with the first respondent (Avant) during the period 27 September 2011 to 30 June 2019. He then changed insurers and, for the years ended 30 June 2020 and 30 June 2021, held professional indemnity insurance with the second respondent (MIGA).

3    In June 2020, Dr Darshn was joined as a defendant to a representative proceeding in the Supreme Court of New South Wales brought by a Ms Rickhuss against TCI and other defendants (the TCI Proceeding or the TCI class action). The proceeding had been commenced in 2017. In June 2020, Dr Darshn and 10 other surgeons were added as defendants to the proceeding. Dr Darshn sought indemnity under his insurance policies in respect of his legal costs and any liability in respect of the TCI Proceeding. Initially, he claimed indemnity from Avant. However, Avant refused his claim for indemnity on the ground that no “claim” as defined in the policies had been made against him during any of the periods of cover. Each of the Avant policies was (what may be conveniently described as) a “claims made and notified” policy. Dr Darshn then sought indemnity from MIGA. However, MIGA refused his claim for indemnity on the basis of various exclusions in the applicable MIGA policy.

4    Dr Darshn then commenced the present proceeding against both Avant and MIGA, seeking declaratory and other relief.

5    On the first day of the hearing, counsel for Dr Darshn and senior counsel for MIGA informed the Court that the proceeding as between Dr Darshn and MIGA had been resolved on the basis that Dr Darshn’s claims against MIGA would be dismissed with no order as to costs. Orders to this effect were then made (subject to MIGA reserving the right to seek costs as against Avant). It is not necessary to say anything more in these reasons about Dr Darshn’s claims against MIGA.

6    In brief outline, the key background facts relating to Dr Darshn’s case against Avant are as follows.

7    On 28 June 2017, Dr Darshn gave written notice to Avant of a complaint that had been made to the Health Care Complaints Commission (HCCC) against him by a former TCI patient, who I will refer to as “Ms M”, concerning BAS performed by him at TCI premises (Ms M’s Complaint). Avant accepted Dr Darshn’s claim for indemnity in relation to Ms M’s Complaint. The complaint was subsequently resolved favourably to Dr Darshn. Ms M is within the represented class in the TCI Proceeding.

8    In September 2017, the TCI Proceeding was commenced against TCI, certain TCI subsidiaries and Dr Eddy Dona, the surgical director of TCI and a director of certain TCI subsidiaries. At this stage, Dr Darshn was not named as a defendant to the proceeding.

9    On 20 March 2018, Dr Darshn gave written notice to Avant of a proceeding that had been commenced by a Ms Scotford against Dr Darshn, TCI and others in the District Court of New South Wales (the Scotford Proceeding). Avant accepted Dr Darshn’s claim for indemnity in respect of the proceeding, and appointed Makinson d’Apice Lawyers (MDL), a firm of solicitors, to act on Dr Darshn’s behalf in the proceeding. Ms Scotford fell within the represented class in the TCI Proceeding, but subsequently opted out of the TCI Proceeding.

10    In January 2019, the plaintiffs in the TCI Proceeding served a subpoena to produce documents on Dr Darshn. Subpoenas in substantially the same terms were also served on other surgeons who had performed BAS at TCI clinics. The subpoena was expressed in broad terms, seeking many categories of documents. The breadth and terms of the subpoena suggested that the surgeons upon whom it had been served might be joined as defendants to the TCI Proceeding.

11    In February 2019, MDL communicated with Avant in relation to the Scotford Proceeding. In the course of these communications, MDL provided Avant with information about the TCI Proceeding and stated that there was a substantial overlap between the Scotford Proceeding and the TCI Proceeding.

12    On 18 February 2019, Dr Darshn telephoned Avant’s Medico-Legal Advice Service and obtained advice regarding the subpoena.

13    On 22 March 2019, Dr Darshn again telephoned Avant’s Medico-Legal Advice Service. He raised two matters: first, that he had received a letter from solicitors in relation to a proceeding against him brought by a Ms Summers-Hall (the Summers-Hall Proceeding); secondly, he again discussed the subpoena that he had received from the plaintiffs in the TCI Proceeding.

14    At this time, Avant already had a copy of the subpoena (or, more accurately, a subpoena in substantially the same terms as the subpoena served on Dr Darshn) as Avant was the insurer for other surgeons who had been served with such a subpoena.

15    During the call, and in a subsequent email, Avant suggested that Dr Darshn provide a copy of the subpoena in case he needed further advice about it. However, he did not do so.

16    During the call, Dr Darshn sent an email to Avant with a copy of the solicitors’ letter in relation to the Summers-Hall Proceeding. Avant accepted Dr Darshn’s claim for indemnity in respect of the Summers-Hall Proceeding, which was subsequently settled.

17    On 30 June 2019, Dr Darshn ceased to hold insurance with Avant. On 1 July 2019, he commenced to hold insurance with MIGA.

18    In June 2020, Dr Darshn and 10 other surgeons were joined as defendants to the TCI Proceeding. Various steps have since taken place in the TCI Proceeding.

19    As outlined in paragraph 28 of his amended concise statement, Dr Darshn relies on the following six alternative contentions or grounds in support of his claim against Avant. They are as follows:

(a)    By giving Avant written notice of Ms M’s Complaint, Dr Darshn gave Avant written notice of a “claim” within the meaning of the applicable Avant policy, being a claim which continues to be advanced by the lead plaintiffs in the TCI Proceeding on Ms M’s behalf. This notification entitles him to indemnity in relation to the TCI Proceeding (including payment of his legal defence costs) under the applicable policy (First Contention).

(b)    By the communications between MDL and Avant, Dr Darshn (by his agent, MDL) notified Avant in writing of facts which might give rise to claims against him in the TCI Proceeding such that s 40(3) of the Insurance Contracts Act 1984 (Cth) operates to prevent Avant from denying liability under the 2017-18 and/or 2018-19 Avant policies (Second Contention).

(c)    By notifying Avant of Ms M’s Complaint, Ms Scotford’s claim and/or Ms Summers-Hall’s claim (by themselves or in conjunction with his oral notification of his receipt of the subpoena in the TCI Proceeding): Dr Darshn provided written notice to Avant of facts that might give rise to a claim against him as soon as was reasonably practicable after he became aware of them; accordingly, s 40(3) operates to prevent Avant from denying liability under one or more of the 2016-17, 2017-18 or 2018-19 Avant policies (Third Contention).

(d)    By notifying Avant orally of the subpoena in the TCI Proceeding: Dr Darshn provided notice to Avant of facts that might give rise to a claim against him as soon as was reasonably practicable after he became aware of them for the purposes of s 40(3); and, in the absence of any prejudice to Avant from Dr Darshn’s failure to provide that notice in writing, s 54 and/or s 14 of the Insurance Contracts Act operate to prevent Avant from relying on the requirement of writing in s 40(3) in order to avoid liability (Fourth Contention).

(e)    Avant acted in breach of its duty of utmost good faith under s 13 of the Insurance Contracts Act because it:

(i)    acted arbitrarily or unfairly in refusing Dr Darshn’s claim for indemnity (while accepting the claims of other surgeons who notified Avant of the TCI Proceeding claims in relevantly indistinguishable circumstances);

(ii)    failed to advise or inform him during his telephone calls with its Medico-Legal Advice Service that he was required to send it the subpoena in order to be covered for any claim related to the TCI Proceeding; and/or

(iii)    failed to advise him clearly in writing before he entered into his 2017-18 and 2018-19 policies of the effect of s 40(3), as required by s 40(2)

(Fifth Contention).

(f)    On a proper construction of the 2017-18 and/or 2018-19 Avant policy: Ms M’s Complaint, Ms Scotford’s claim and/or Ms Summers-Hall’s claim (on the one hand) and the TCI Proceeding (on the other) arose out of a series of related single acts, errors, omissions or occurrences and, accordingly, are to be treated as a single “claim” under the policy in force at the date the first of the series of related claims commenced (Sixth Contention).

20    In closing submissions, counsel for Dr Darshn did not press the third aspect of the Fifth Contention, namely the alleged contravention of s 40(2) of the Insurance Contracts Act.

21    For the reasons that follow, I have concluded that Dr Darshn’s Second Contention is substantially made out. In light of that conclusion, it is not strictly necessary for me to consider the other contentions. However, for the sake of completeness I have considered the other contentions. I consider that the Fifth Contention is made out. I reject the other contentions.

Procedural matters

22    The proceeding was commenced by originating application supported by a concise statement. These documents were subsequently amended. The final versions of the relevant documents are: Dr Darshn’s amended originating application dated 5 March 2021; Dr Darshn’s amended concise statement dated 30 April 2021; Avant’s amended concise statement dated 7 May 2021; and Dr Darshn’s concise statement in reply dated 26 March 2021.

23    By his amended originating application, Dr Darshn seeks declarations and orders to the following effect (as well as interest and costs) as against Avant:

(a)    a declaration that, upon the proper construction of his insurance policies for the 2017-18 year and the 2018-19 year, and in the circumstances that have happened, Avant is obliged to indemnify him in respect of amounts for which he becomes liable to pay as compensation for civil liability (civil liability amounts), and legal defence costs, in respect of the TCI Proceeding;

(b)    in the alternative to paragraph (a), declarations that:

(i)    Dr Darshn’s failure to give written notice (or any notice) to Avant of the claims (or facts and circumstances that might give rise to claims) against him in the TCI Proceeding during the period of insurance did not prejudice Avant’s interests in any way;

(ii)    by operation of s 54(1) of the Insurance Contracts Act and in the premises of paragraph (i), Avant may not refuse to indemnify him for civil liability amounts and legal defence costs in respect of the TCI Proceeding by reason only of Dr Darshn’s failure to give notice to it in writing (or any notice) of the claims (or facts and circumstances that might give rise to claims) against him in the TCI Proceeding during the period of insurance;

(iii)    in the alternative to paragraphs (i) and (ii), by operation of s 54(1), Avant’s liability to Dr Darshn for civil liability amounts and legal defence costs in respect of the TCI Proceeding is to be reduced by an amount that fairly represents the extent to which its interests were prejudiced as a result of Dr Darshn’s failure to give written notice of the claims (or facts and circumstances that might give rise to claims) against him in the TCI Proceeding during the period of insurance.

(c)    Further or in the alternative, declarations that:

(i)    Avant’s refusal to indemnify Dr Darshn in relation to civil liability amounts and legal defence costs in respect of the TCI Proceeding is in breach of Avant’s implied contractual duty of utmost good faith set out in s 13 of the Insurance Contracts Act;

(ii)    further or alternatively, by relying on the first paragraph under the heading “3. How Claims Work” in the insurance policies (the claim notification provision) in denying indemnity to Dr Darshn, Avant failed to act with the utmost good faith, contrary to s 14 of the Insurance Contracts Act; in the premises, Avant may not rely on the claim notification provision in order to deny indemnity to Dr Darshn.

(d)    An order for specific performance requiring Avant:

(i)    to pay Dr Darshn’s legal defence costs that have been reasonably paid by him to date in respect of the TCI Proceeding; and

(ii)    subject to the terms of the applicable Avant policies, to indemnify Dr Darshn in relation to all future civil liability amounts and legal defence costs in respect of the TCI Proceeding.

(e)    In the alternative to paragraph (d):

(i)    an order requiring Avant to pay Dr Darshn all legal defence costs that have been reasonably paid by him in respect of the TCI Proceeding, less an amount that fairly represents the extent to which its interests were prejudiced as a result of Dr Darshn’s failure to give written notice (or any notice) of the claims (or facts and circumstances that might give rise to claims) against him in the TCI Proceeding;

(ii)    an order requiring Avant to indemnify Dr Darshn in relation to all future civil liability amounts and legal defence costs in respect of the TCI Proceeding, less a proportion of those amounts fairly representing the extent to which its interests were prejudiced as a result of Dr Darshn’s failure to give written notice (or any notice) of the claims (or facts and circumstances that might give rise to claims) against him in the TCI Proceeding; and

(iii)    damages for breach of contract.

24    The hearing of this proceeding commenced on 19 April 2021. However, the bulk of the time on that day and the next was occupied with resolving an issue of legal professional privilege that had arisen shortly before the hearing. Having resolved that issue, it was necessary to adjourn the hearing for several weeks to enable certain documents to be produced by Avant to Dr Darshn. The hearing resumed on 11 May 2021 and concluded the next day. Effectively, the hearing of the proceeding occupied two days, namely 11 and 12 May 2021.

The evidence

25    Dr Darshn relied on three affidavits that he affirmed, dated 23 December 2020, 25 March 2021 and 28 April 2021. Dr Darshn was cross-examined.

26    Dr Darshn also tendered a large number of documents.

27    Avant relied on:

(a)    an affidavit of Tracy Pickett, a senior solicitor employed by Avant who works in Avant’s Medico-Legal Advice Service, dated 12 March 2021;

(b)    an affidavit of Kate Gillman, the head of Avant’s Medico-Legal Advice Service, dated 15 March 2021; and

(c)    an affidavit of Kate Martin, a solicitor, dated 20 April 2021.

28    Ms Pickett and Ms Gillman were cross-examined. Ms Pickett gave evidence by video conference from Queensland.

29    Ms Martin was not cross-examined. Her affidavit was initially read in the context of the privilege issue referred to above. It was subsequently agreed between the parties that it should form part of the evidence in the substantive proceeding.

30    Avant also tendered one document.

31    I make the following observations about the evidence given by the witnesses.

32    Dr Darshn had a poor recollection of the relevant events. Some of his evidence was internally inconsistent. I place little weight on his written and oral evidence.

33    Ms Pickett was an excellent witness. She answered questions clearly and directly. She made clear what she did and did not recall. I generally accept her evidence.

34    Ms Gillman also gave evidence in a clear and direct manner. She made sensible concessions, which enhanced her credibility. I generally accept her evidence.

Factual findings

Dr Darshn

35    Dr Darshn is a registered medical practitioner practising as a cosmetic surgeon in Australia.

36    During the period from 27 September 2011 to 30 June 2019, he held professional indemnity insurance with Avant.

The Avant policies

37    For present purposes, the focus is on the policies Dr Darshn held with Avant for the 2016-17, 2017-18 and 2018-19 years (each policy commencing on 1 July of one year and concluding on 30 June of the following year). Of these, copies of the policies for the latter two years are in evidence. The case proceeded on the basis that there is no relevant difference between the terms of the two policies and, further, that the policy for the 2016-17 year was in substantially the same terms. It will be sufficient, therefore, to refer to the terms of the 2018-19 policy.

38    The 2018-19 policy is headed “Avant Practitioner Indemnity Insurance Policy”. It is labelled “Version 6.0” and dated 1 July 2018. An overview of the types of cover appears on a page headed “A quick summary of your cover”. This indicates that there are three categories of cover:

(a)    civil liability (Part A of the policy);

(b)    disciplinary and other matters (Part B); and

(c)    communicable disease cover and away from work costs (Part C).

For present purposes, the focus is on Part A of the policy.

39    Section 2 of the 2018-19 policy is headed “What we cover”. Within section 2, there is a section dealing with coverage under Part A (civil liability). This includes the following clause (clause 2):

Healthcare in private practice

If you have declared private billings, then we will cover you for amounts which you become legally liable to pay as compensation for civil liability, in addition to legal defence costs, in respect of claims made against you in the policy period in relation to healthcare in private practice.

If you have declared private billings as part of your application, cover for healthcare in private practice has been added to your policy.

No issue is raised regarding the requirement in the opening words of this clause, namely that Dr Darshn had declared private billings.

40    Clause 2 of the policy needs to be read with a number of definitions set out in the definition section of the policy. The word “claim” is defined as follows:

A demand for compensation or damages in relation to healthcare which:

a)    is first made against you during the policy period; and

b)    you tell us about in writing during the policy period.

41    The expression “healthcare” is defined as follows:

a)    any care, treatment, advice, service or goods provided by you in respect of the physical or mental health of a patient;

b)    a medical examination, medical report or medical opinion prepared by you at the request of a third party, such as a lawyer, insurer or statutory body;

c)    you providing education, giving a paid or unpaid presentation or address or providing medical advice or information that is published, including in a newspaper, textbook, journal, video, mobile application or blog;

d)    any care, treatment, advice, service or goods provided by you to a person in an emergency that is necessary to stabilise that person or to prepare that person for transfer; or

e)    you acting in an administrative capacity.

In relation to (a), (b), (c), and (e) above only to the extent that it is associated with your category of practice.

42    The word “patient” is defined as:

A person who has received, is receiving or is due to receive, medical care and/or treatment. This may also include the patient’s family.

43    Also relevant is the expression “legal defence costs”, which is defined as follows:

The necessary and reasonable costs of investigating, defending or settling a claim made against you and covered by this policy.

44    It is not necessary to refer in detail to Parts B and C of the policy. However, I note that Part B included, in clause 8.6, coverage in relation to a subpoena to produce medical records.

45    After Part C, there is a section headed “General exclusions”. For the sake of completeness, I set out clause 14.1, because it is referred to in a section of the policy that is quoted later in these reasons. Clause 14.1 is in the following terms:

14.    We will not cover you in connection with:

14.1    Prior or pending claim or circumstances

any claim or circumstances which might give rise to a claim or request for indemnity, which:

a)    you knew about or a person in your position ought reasonably have known about and thought might result in a claim or allegation being made against you;

b)    you notified us, or failed to notify us, of before the policy period commenced; or

c)    you notified, or ought reasonably to have notified to another insurer before the policy period commenced.

46    Section 3 of the 2018-19 policy is headed “How claims work”. This section includes the following terms are relevant for present purposes:

Claims made and notified policy

This policy operates on a claims made and notified basis. It covers you for claims (including legal defence costs) made by patients and other third parties against you and which you notify to us within the policy period when the healthcare giving rise to the claim occurred after the retroactive date.

Every claims made and notified policy has a retroactive date. For a claim to be covered under Part A of the policy, the healthcare you provided which lead to the claim must have occurred after the retroactive date. The retroactive date is a date in the past and could be before the inception of this policy. The retroactive date that you have agreed with us can be found on your policy schedule.

Part B of the policy provides legal fees and other expenses for disciplinary and other matters, tax audit cover and cover for a loss of documents. The clauses require that the matter or proceedings are commenced and notified to us in the policy period.

This policy does not provide cover in relation to:

•    claims against you arising from healthcare that occurred prior to the retroactive date;

•    claims against you, or facts that may result in claims against you, notified to us after the end of the policy period;

•    claims made, threatened or intimated against you prior to the policy period; or

•    facts or circumstances of which you first became aware prior to the policy period, and which you knew or ought reasonably to have known had the potential to give rise to a claim or request for indemnity under this policy.

…

Continuous cover

If you, before the policy period, first become aware of facts or circumstances that might give rise to a claim or request for indemnity and you decide not to notify us of these facts or circumstances, then, notwithstanding clause 14.1, we will cover you where:

a)    we continued without interruption to be your professional indemnity insurer from the time you knew or ought reasonably to have known of the facts or circumstances that might give rise to a claim or request for indemnity to the date you actually notified us;

b)    had you decided to notify us when you first became aware of the facts or circumstances, you would have been covered under the policy in force at that time; and

c)    your decision not to notify us when you first became aware of the facts or circumstances was not fraudulent non-disclosure or fraudulent misrepresentation.

Our liability to indemnify you is limited to the extent we would have been obliged to indemnify you under the terms and conditions of the policy in effect at the time you knew or ought reasonably to have known of the facts or circumstances that might give rise to a claim or request for indemnity.

If we are obliged to indemnify you pursuant to this clause, we may reduce our liability to you by the amount of any prejudice we suffer as a result of your decision not to notify us at the time you knew or ought reasonably to have known of the facts or circumstances that might give rise to a claim or request for indemnity.

How much we will pay

a)    subject to an automatic policy reinstatement, the most we will pay for any one claim or request for indemnity under this policy, and in the aggregate for all claims and requests for indemnity during the policy period, is the maximum sum insured listed on your policy schedule. For communicable disease cover or if you opted to have the away from work optional cover, these sub-limits will be paid in addition to the sum insured.

b)    any sub-limit that applies to a cover is the most we will pay against that cover for any one claim or request for indemnity and in the aggregate for all claims or requests for indemnity during the policy period for that cover. Any sub-limit will be specified in the PDS, the policy schedule or within the clause providing cover.

c)    under Part B and Part C, the sum insured and any sub-limit are inclusive of legal defence costs. Under Part A, the sum insured is exclusive of legal defence costs.

d)    the sum insured and any sub-limit are inclusive of the deductible.

e)    nothing in this policy operates to increase the sum insured or any sub-limit under Part B or Part C of the policy.

f)    all claims or requests for indemnity under this policy, which arise from, or are attributable to, a single act, error, omission or occurrence or series of related single acts, errors, omissions or occurrences, will be treated under this policy as one claim or one request for indemnity.

g)    where more than one sub-limit applies to a claim, the amount payable for the claim under each sub-limit in the aggregate shall not exceed the highest applicable sub-limit.

…

You must notify us of a claim

You must notify us in writing as soon as practicable of any claim. If you do not notify us of a claim as soon as practicable, you may not be covered under this policy and your right to indemnity may be prejudiced.

…

Conduct of claims or requests for indemnity

You agree that we have the conduct of a claim or request for indemnity covered under this policy including its investigation, pursuit, defence, avoidance, reduction or settlement and we may do so in your name.

We may defend or settle a claim, complaint or matter as we think fit. You may defend any claim or request for indemnity which we believe should be settled but we will not pay any more in relation to that claim or request for indemnity than we would have been required to pay if it had been settled or resolved as we believed it could or should have been.

We will appoint the lawyer or other person

We will appoint the lawyer or other person to provide services to us for the benefit of you. When we appoint the lawyer or other person, we do so in our own capacity and not as an agent for you.

The lawyer or other person appointed by us supplies services to us and not to you for the purposes of the Goods and Services Tax (GST). We are entitled to claim a GST input tax credit on services supplied by the lawyer or other person.

We do not accept responsibility for the lawyer or other person

We do not accept any responsibility for anything done or not done by the lawyer or other person. He or she is not our agent or employee. We make no representation of any kind about the lawyer’s or other person’s ability.

You must cooperate

You must cooperate with the lawyer or other person in resolving the claim or request for indemnity in a satisfactory, timely and cost-effective way. In particular, you must:

a)    give us and the lawyer a full and truthful account of the relevant facts;

b)    give us and the lawyer any relevant information or documents in your possession that he or she asks for;

c)    obtain any other relevant information or documents that you can;

d)    execute any documents we or the lawyer reasonably ask you to; and

e)    attend any meetings we or the lawyer reasonably ask you to.

You agree at your expense to give us, the lawyer or other person all information, documents and assistance we reasonably require and cooperate fully with us, the lawyer or other person.

You further agree to waive any claim for legal professional privilege or confidentiality to the extent only that the privilege or confidentiality would otherwise prevent the lawyer from disclosing information to us. The lawyer will keep us properly informed on all relevant matters.

Ms M’s Complaint (notified to Avant in June 2017)

47    On 28 June 2017, Dr Darshn notified Avant in writing of Ms M’s Complaint. He did this by sending an email to Avant on that day with the subject line “Notification of incident form”. The email stated: “Hi my notification of incident form. Other docs will follow”. A PDF document was attached to the email. It may be inferred that this was the completed incident form.

48    On 29 June 2017, the next day, a claims manager at Avant emailed Dr Darshn, requesting a number of documents, including the patient’s complaint to the HCCC. A copy of that document, which it may be inferred was provided by Dr Darshn to Avant, is included in the materials before the Court. The complaint was made on a three-page form, which was completed by hand. In section 4 of the complaint (headed “My complaint”) Ms M provided the following details of her complaint in response to the questions on the form:

Provide a short summary of your complaint. It is useful to include what happened, when it happened and who was involved. If you need more space, please attach a separate page to the back of this complaint form. Please also attach any relevant documents you have.

I had breast agumentation with The Cosmetic Institute July 15th 2015 with Dr Dash. After the 6 weeks of healing I noticed they were severly uneven (one dramatically lower than the other). Contacted The Institute and booked in to have revision surgery to fix it up, free of charge. Had surgery 5th July 2016. Same again after healing they are still uneven and the right pocket isn’t tight enough holding the implant securely. I’ve contacted again, made an appointment seen Dr Dash for him to say it’ll cost $3,000 to try make them even and make that pocket tighter so the implant doesn’t have so much movement. Also trying to bring them closer together so I have cleavage, hoping to fix the double bubble on the left breast by tightening the pocket, sowing them in place higher.

The main issues I am concerned about are:

Breast being uneven.

Right pocket not holding implant securely

Double bubble on left breast

Massive gap between my breast (no cleavage)

As a result of my complaint I want:

This surgery to correct the issues with no charge, or at the very least half the cost their quoting me. After the revision surgery this should have been resolved but it hasn’t.

I have approached the health service provider about my complaint – Yes

$3,000 to try fix them. (The Cosmetic Institute South Port Queensland), 98 Marine Parade, South Port, QLD 07 5613 2000.

(Errors in original.)

49    Avant accepted Dr Darshn’s claim for indemnity in relation to Ms M’s Complaint.

50    On 21 November 2017, Ms M’s Complaint was finalised favourably to Dr Darshn.

The TCI Proceeding (as commenced in September 2017)

51    On 14 September 2017, the TCI Proceeding was commenced in the Supreme Court of New South Wales. At this stage, Dr Darshn was not a defendant to the proceeding. The first plaintiff was Ms Rickhuss. In addition, there were four other plaintiffs (all former patients who received BAS at TCI clinics). The defendants were: TCI; The Cosmetic Institute Parramatta Pty Ltd (TCI Parramatta); TCI Bondi Junction Pty Ltd (TCI Bondi); TCI Southport Pty Ltd (TCI Southport); and Dr Dona (said to be the surgical director of TCI, TCI Parramatta, TCI Bondi and/or TCI Southport, and a director of TCI Parramatta, TCI Bondi and TCI Southport).

52    The TCI Proceeding was a representative proceeding pursuant to Pt 10 of the Civil Procedure Act 2005 (NSW). The group members were described in paragraph 2 of the statement of claim as follows:

The group members are persons who:

(a)    Had breast augmentation surgery (BAS) at the following premises:

(i)    Smith Street Parramatta, New South Wales (TCI Parramatta Premises);

(ii)    Hollywood Avenue, Bondi Junction, New South Wales (TCI Bondi Premises);

(iii)    Suite 1, 98 Marine Parade, Southport, Queensland (TCI Southport Premises);

(iv)    Burwood Road, Concord, New South Wales (Concord Private Hospital);

(v)    Chetwynd Road, Guildford, New South Wales (Holroyd Private Hospital).

(b)    Had BAS performed by surgeons who were the servants and/or agents of the first, second; third or fourth defendants (TCI Surgeons);

(c)    Had BAS performed by a TCI Surgeon trained by, or under the supervision of, the fifth defendant in accordance with accreditation and training contracts between the TCI Surgeons and the first, second, third and/or fourth defendants;

(d)    Had BAS using the “One Size Fits All” Approach (refer to paragraph 21);

(e)    Had BAS performed under anaesthesia administered by anaesthetists who were the servants and/or agents of the first, second, third and/or fourth defendants (TCI Anaesthetists); and,

(f)    Suffered injury, loss and damage as a result of undergoing BAS.

53    The above group description referred to the “One Size Fits All” approach. That expression was defined in paragraph 21 of the statement of claim in the following terms:

The BAS performed at TCI Parramatta, TCI Bondi, TCI Southport, Concord Private Hospital and Holroyd Private Hospital for or on behalf of The Cosmetic Institute, TCI Parramatta, TCI Bondi and/or TCI Southport adopted the following approach (the One Size Fits All Approach):

(a)    Pre-operative consultations were conducted, and advice provided to plaintiffs and group members, in the absence of an appropriately qualified and trained surgeon;

(b)    Surgery was performed by TCI Surgeons under anaesthesia provided by TCI Anaesthetists;

(c)    The surgery was performed using bilateral infra-mammary incisions;

(d)    Round textured Allergan silicone implants were implanted;

(e)    Implants were inserted into subpectoral pockets and/or using a dual plane approach;

(f)    The same technique was used irrespective of:

(i)    Differences in the size or shape of the plaintiffs’ and group members’ breasts;

(ii)    Whether plaintiffs’ and group members’ breasts were tuberous or ptotic; or,

(iii)    Whether different or additional surgical approaches and techniques were indicated, such as mastopexy.

(g)    At TCI Parramatta Premises and TCI Bondi Premises:

(i)    Surgery was performed by TCI Surgeons under local anaesthesia and twilight sedation provided by TCI Anaesthetists;

(ii)    Surgery was performed without general anaesthesia;

(iii)    The same surgical technique was used irrespective of whether general anaesthesia was required so as to enable different or additional surgical approaches.

54    Paragraph 23 of the statement of claim alleged that the defendants had made a series of representations.

55    Paragraph 25 of the statement of claim set out the common questions of law and fact as follows:

The questions of law or fact common to the claims of group members are:

(a)    Whether the TCI Surgeons acted on behalf of, through, or in connection with the first, second, third or fourth defendants?

(b)    Whether the TCI Surgeons made the Representations to the plaintiffs and group members?

(c)    Whether the defendants made the Representations to the plaintiffs and group members?

(d)    Whether BAS was performed negligently by the TCI Surgeons?

(e)    Whether the defendants:

(i)    contravened s 60 of the ACL;

(ii)    breached their duty under the common law to exercise due care and skill in performing BAS;

(iii)    breached a warranty implied by law into the agreement that BAS would be performed with due care and skill;

(iv)    contravened a guarantee that BAS would be fit for purpose implied into the agreement by s 61(2) of the ACL?

(f)    Whether the representations were misleading representations with respect to future matters for the purposes of s 4 of the ACL?

(g)    Whether the representations were misleading or deceptive and in contravention of ss 18, 29(1)(b) and 29(1)(m) of the ACL?

(h)    Whether the representations were negligent representations?

(i)    Whether the fifth defendant devised, designed, implemented, supervised and conducted the training of TCI Surgeons?

(j)    Whether the fifth defendant recommended to the first, second, third and/or fourth defendants that the TCI Surgeons be accredited to perform BAS?

(k)    Whether the fifth defendant authorised the accreditation of the TCI Surgeons to perform BAS?

(l)    Whether the fifth defendant devised, designed, supervised and implemented the One Size Fits All Approach to BAS?

(m)    Whether the first defendant controlled and directed the provision of BAS services and facilities to the plaintiffs and group members by the second, third and fourth defendants?

(n)    Whether the adoption of the One Size Fits All Approach to BAS was negligent?

56    Paragraph 81 of the statement of claim alleged that the defendants breached their duties of care:

The defendants breached their duties of care to the plaintiffs and group members by:

(a)    Recommending BAS in accordance with the One Size Fits All Approach;

(b)    Performing BAS in accordance with the One Size Fits All Approach;

(c)    Failing to inform the plaintiffs and group members that they were at an increased risk of requiring revision surgery in the future;

(d)    Failing to engage adequately qualified, trained, experienced and accredited surgeons to perform BAS;

(e)    Failing properly to train the TCI Surgeons;

(f)    Failing properly to supervise the TCI Surgeons;

(g)    Devising and implementing the Defendants’ System of BAS;

(h)    Devising and implementing the Defendants’ System of BAS including the TCI Facilities, TCI Surgeons, TCI Anaesthetists, the One Size Fits All Approach to BAS, and the Pre-Surgery Consultations;

(i)    Failing to properly supervise the TCI Anaesthetists;

(j)    Failing to regularly review and/or revise the Defendants’ System of BAS;

(k)    Failing to implement adequate infection control procedures for BAS;

(l)    Failing to maintain and review infection control procedures for BAS;

(m)    Failing in the planning and performance of BAS to consider differences in the anatomy of the plaintiffs and group members;

(n)    Failing to provide adequate review and follow up of the plaintiffs and group members following BAS;

(o)    Failing to decline to perform BAS in circumstances where BAS was considered technically difficult;

(p)    Failing to decline to perform BAS in circumstances where BAS in the absence of maxtopexy or other different or additional surgical techniques were indicated;

(q)    Recommending and/or performing BAS when they knew or ought to have known that performing BAS without general anaesthetic and under twilight sedation and local anaesthetic would result in patients experiencing pain and moving during the surgery thereby increasing the risk of BAS Complications;

(r)    Failing to inform the plaintiffs and group members that performing BAS without general anaesthetic and under twilight sedation and local anaesthetic would increase the risk of BAS Complications;

(s)    Recommending and/or performing BAS when they knew or ought to have known that performing BAS without general anaesthetic and under twilight sedation and local anaesthetic would result in patients experiencing pain and moving during the surgery which would, in turn, require the administration of increasing cumulative doses of local anaesthetic thereby increasing the risk of BAS Complications;

(t)    Failing to inform the plaintiffs and group members that performing the surgery without general anaesthetic and under twilight sedation and local anaesthetic would result in patients experiencing pain and moving during the surgery which would, in tum, require the administration of increasing cumulative doses of local anaesthetic thereby increasing the risk of BAS Complications.

The Scotford Proceeding (notified to Avant in March 2018)

57    On 1 February 2018, the Scotford Proceeding was commenced in the District Court of New South Wales. The plaintiff was Ms Scotford. The defendants were: Dr Darshn; TCI; TCI Parramatta; and Dr Dona.

58    On 20 March 2018, Dr Darshn sent an email to Avant giving notice of the Scotford Proceeding.

59    Avant accepted Dr Darshn’s claim for indemnity in respect of the Scotford Proceeding, and instructed MDL to act on Dr Darshn’s behalf in the proceeding. This occurred on or about 23 March 2018. The evidence includes a letter of that date from Avant to Dr Darshn in relation to the Scotford Proceeding. The letter included the following statements:

We recently received correspondence from you on 21 March 2018 regarding the patient’s civil claim.

I have been appointed as Claims Manager and as such, I will be responsible for the overall direction and strategy of this claim.

I have also instructed Makinson d’Apice Lawyers to act on your behalf in this matter and a solicitor will be in contact with you shortly to discuss the claim further.

…

Avant will conduct the claim on your behalf. You will be consulted and kept informed at all appropriate stages and whilst your views will be taken into account, Avant is responsible for the management of the claim.

60    On the same date, 23 March 2018, Nicholas Regener, a partner of MDL, sent an email to Dr Darshn in relation to the Scotford Proceeding. The email stated:

Dear Dr Darshn

I have been appointed by Avant to represent you in … these proceedings.

When is a suitable time for us to discuss the claim?

Nicholas Regener

61    The statement of claim in the Scotford Proceeding alleged negligence by the defendants. The pleading of negligence referred to the adoption of a “one size fits all approach”, the expression that had been used in the TCI Proceeding statement of claim. In paragraph 21 of the statement of claim in the Scotford Proceeding, the following particulars were provided:

Particulars of Precautions that Ought to Have Been Taken

(a)    Ensured that an adequate pre-operative assessment was given whereby the risks associated with the surgery were properly explained;

(b)    Ensured that the selection of implant type, placement and size was the correct option for the Plaintiff, rather than a “one size fits all approach”;

(c)    Ensured that the First Defendant had proper training in the assessment of the Plaintiff, implant selection and operative technique;

(d)    Ensured that the First Defendant used proper operating technique to avoid “button-holes” and “burns” resulting in tissue loss and contributing to the risks of infection;

(e)    Ensured that anti-sepsis or proper anti-sepsis was provided;

(f)    Ensured that proper anaesthetic sedation was provided;

(g)    Ensured that the Plaintiff’s implant position was checked in an “up-right” position during the surgical procedure;

(h)    Ensured that “implant sizers” were used to determine the correct size and position of the implant pocket;

(i)    Ensured that the Plaintiff was afforded proper post-operative care;

(j)    Ensured that all revisionary procedures were performed with senior surgical input and assistance;

(k)    Ensured that the Plaintiff wasn’t subjected to multiple surgeries, removal and reinsertion of the implant so as to avoid the consequences of capsular contraction necessitating capsulectomy and explantation;

(l)    Ensured that any or any proper procedures were in place for discussion of adverse outcomes with peers and/or the Fourth Defendant, so as to avoid further unnecessary procedures.

62    The expression “one size fits all approach” was also used in the particulars under paragraph 26 of the statement of claim in the Scotford Proceeding. Those particulars were as follows:

Particulars of Breach of Duty of Care

(a)    Failed to exercise reasonable care for the safety of the Plaintiff;

(b)    Exposed the Plaintiff to a foreseeable risk of injury which could have been avoided by the exercise of reasonable care;

(c)    Failed to take the precautions identified in paragraph 20 above;

(d)    Recommended and performed BAS in accordance with a “one size fits all” approach;

(e)    Failed to provide proper anaesthetic sedation;

(f)    Failed to engage adequately qualified, trained, experienced and accredited surgeons to perform BAS;

(g)    Failed to properly supervise surgeons performing BAS;

(h)    Failed to ensure that surgeons performing BAS were appropriately skilled in their operating technique;

(i)    Failed to review and/or revise the Defendants’ system of BAS;

(j)    Failed to implement, maintain and/or review any or any adequate infection control;

(k)    Failed to provide adequate post-operative care;

(l)    Failed to ensure adverse outcomes were appropriately discussed between peers and/or the Fourth Defendant.

63    Paragraph 30 of the statement of claim in the Scotford Proceeding alleged that TCI and TCI Parramatta had made a series of representations. These were expressed in substantially the same terms as the representations alleged in the TCI Proceeding.

The subpoena in the TCI Proceeding (January 2019)

64    In early or mid-January 2019, under cover of a letter from Turner Freeman (the solicitors for the plaintiffs in the TCI Proceeding) dated 7 January 2019, Dr Darshn received a subpoena to produce documents issued by the plaintiffs in the TCI Proceeding. The schedule to the subpoena, which identified the documents sought, was expressed in broad terms. It is relevant for the purposes of the present proceeding to understand the breadth of the subpoena. I therefore set out the schedule to the subpoena in full:

TAKE NOTICE that in this subpoena:

A.    ‘Document’ has the same meaning as that in the Evidence Act 1995 (NSW), namely “document means any record of information, and includes:

(a)    Anything on which there is writing; or

(b)    Anything on which there are marks, figures, symbols or perforations having a meaning to persons qualified to interpret them; or

(c)    Anything from which sound, images or writings can be reproduced with or without the aid of anything else; or

(d)    A map, plan, drawing or photograph.”

B.    ‘Defendants’ means each of the named defendants in the proceedings, being The Cosmetic Institute Pty Limited (ACN 153 061 155), The Cosmetic Institute Parramatta Pty Limited (ACN 144 469 036), TCI Bondi Junction Pty Limited (ACN 165 531 895), TCI Southport Pty Ltd (ACN 605 603 423) and Eddy Dona, either individually or jointly with one or more of the other named defendants.

C.    ‘Complications’ means one or more of the following:

(a)    The creation of inappropriate pockets into which the implants were inserted;

(b)    Malpositioning of the implants:

(c)    Ripping of the implants:

(d)    Excessive tissue trauma;

(e)    Haemorrhage;

(f)    Infection:

(g)    Scarring:

(h)    Wound dehiscence;

(i)    Contracture of the implant capsule;

(j)    Local anaesthetic toxicity leading to cardiac arrest, pneumothorax and death: and,

(k)    Breast implant-associated anaplastic large-cell lymphoma.

D.    ‘The Premises’ means one or more of the following that were operated by the named Defendants:

(a)    Smith Street Parramatta, New South Wales (TCI Parramatta Premises);

(b)    Hollywood Avenue, Bondi Junction, New South Wales (TCI Bondi Premises);

(c)    Suite 1, 98 Marine Parade, Southport, Queensland (TCI Southport Premises);

(d)    Burwood Road, Concord, New South Wales (Concord Private Hospital);

(e)    Chetwynd Road, Guildford, New South Wales (Holroyd Private Hospital).

E.    ‘Doctors’ means one or more of the surgeons or anaesthetists performing breast augmentation surgery or anaesthetic services for breast augmentation surgery at the Premises as defined in paragraph D above in the period 7 June 2010 to 14 September 2017, including:

(a)    The following doctors:

(i)    Dr Farheen Ali;

(ii)    Dr Napoleon Chiu;

(iii)    Dr Sri Darshn;

(iv)    Dr Chi-Vien Duong also known as Dr Charles Duong;

(v)    Dr James Francis Christopher Kenny also known as Dr Jim Kenny;

(vi)    Dr Daniel Kwok;

(vii)    Dr Victor Lee;

(viii)    Dr Van Nguyen;

(ix)    Dr Niroshan Sivathasan;

(x)    Dr Anh Huy Tang;

(xi)    Dr Charles Wong.

(b)    The following anaesthetists:

(i)    Dr C Ashes;

(ii)    Dr Constantine Arali also known as Dr Con Arali;

(iii)    Dr Elalingam;

(iv)    Dr A. Fang;

(v)    Dr S Fong;

(vi)    Dr Anna Freney;

(vii)    Dr Gregory Hackman;

(viii)    Dr Hill;

(ix)    Dr T. Holliday;

(x)    Dr Rosa Hou;

(xi)    Dr Sam Judelman;

(xii)    Dr Kabir;

(xiii)    Dr John Kerdic;

(xiv)    Dr Kitman Lam;

(xv)    Dr Jong Chan Lee;

(xvi)    Dr Frederick Luang-Dart Lee;

(xvii)    Dr Erez Ben-Menachem;

(xviii)    Dr P Mohammadieh;

(xix)    Dr Jonathon Riley;

(xx)    Dr Derek Rosen;

(xxi)    Dr Thomas Russell;

(xxii)    Dr Sanjay Satchi;

(xxiii)    Dr Sui;

(xxiv)    Dr Peter Tam.

F.    ‘The Period’ means 7 June 2010 to 14 September 2017.

G.    ‘BAS’ means breast augmentation surgery.

The documents or things you must produce are as follows:

1.    All documents, or copies of documents, recording information of:

(a)    the method of BAS performed at the Premises,

(b)    the method of anaesthesia and sedation used for BAS at the Premises,

(c)    the reasons for using the method of BAS at the Premises,

(d)    the reasons for using the method of anaesthesia and sedation for BAS at the Premises,

(e)    the training and accreditation of the Doctors in the performance of BAS at the Premises,

(f)    the supervision of the Doctors performing BAS at the Premises,

(g)    the training of the Doctors in the method of anaesthesia and sedation used for BAS at the Premises,

(h)    the supervision of the Doctors using the method of anaesthesia and sedation for BAS at the Premises,

(i)    the performance of mastopexy prior to or at the same time as BAS at the Premises,

(j)    criteria for the selection of patients to undergo BAS at the Premises,

(k)    the type or manufacturer of breast implants to be used in BAS performed at the Premises,

(l)    the reasons for using the breast implants identified in (k) above for BAS at the Premises,

(m)    the suitability of the breast implants identified in (k) above for BAS performed at the Premises,

(n)    patient management after the performance of BAS at the Premises,

(o)    warnings provided to patients about the Complications prior to undergoing BAS at the Premises,

(p)    warnings provided to patients about the risks associated with the method of anaesthesia and sedation used for BAS at the Premises,

in the Period.

2.    All documents, or copies of documents, recording information of:

(a)    the method of BAS performed at the Premises,

(b)    the method of anaesthesia and sedation used for BAS at the Premises,

(c)    the reasons for using the method of anaesthesia and sedation for BAS,

(d)    the reasons for using the method of BAS at the Premises,

(e)    training and accreditation in BAS performed at the Premises,

(f)    supervision of BAS performed at the Premises,

(g)    training in the method of anaesthesia and sedation used for BAS at the Premises,

(h)    supervision of the method of anaesthesia and sedation used for BAS at the Premises,

(i)    the performance of mastopexy prior to or at the same time as BAS at the Premises,

(j)    criteria for the selection of patients to undergo BAS at the Premises,

(k)    the type or manufacturer of breast implants used in BAS performed at the Premises,

(l)    the reasons for using the breast implants identified in (k) above for BAS at the Premises,

(m)    the suitability of the breast implants identified in (k) above for BAS performed at the Premises,

(n)    patient management after the performance of BAS at the Premises,

(o)    warnings provided to patients about the Complications prior to undergoing BAS at the Premises,

(p)    warnings provided to patients about the risks associated with the method of anaesthesia and sedation used for BAS at the Premises,

(q)    instructions or directions about BAS performed at the Premises, or

(r)    instructions or directions about the method of anaesthesia and sedation used for BAS at the Premises

provided to you by any of the Defendants in the Period.

3.    All documents, or copies of documents, provided to patients who underwent BAS at the Premises in the Period which record information of:

(a)    the BAS to be performed at the Premises,

(b)    the reasons for performing the proposed BAS at the Premises,

(c)    warnings of the Complications,

(d)    risks associated with the method of anaesthesia and sedation used for BAS at the Premises,

(e)    the reasons for using the method of anaesthesia and sedation for the BAS to be performed at the Premises,

(f)    contraindications to the BAS to be performed at the Premises,

(g)    the circumstances in which BAS is performed after or at the same time as mastopexy,

(h)    whether mastopexy was surgery that was available to be performed at the Premises prior to or at the same time as BAS,

(i)    contraindications to the method of anaesthesia and sedation used for BAS at the Premises,

(j)    the method of anaesthesia and sedation that will be used for any proposed BAS,

(k)    the post-operative management or care that will be provided,

(l)    the post-operative steps the patient should take themselves,

(m)    the type or manufacturer of the implant that will be used in the BAS,

(n)    the reasons why any particular type of implant would be used in the BAS,

(o)    the quality of the service to be provided to the patient at the Premises.

4.    All documents, or copies of documents, recording information of complaints made by:

(a)    you to any of the Defendants about training. supervision, representations made to patients about the suitability of breast augmentation surgery for them, the type of surgery being performed on patients, the type of implants being used, or the Complications,

(b)    patients who had undergone BAS at the Premises to you about the result of their surgery, the type of surgery performed, the type of implant used, or representations made by the Defendants about the quality of surgery offered or results that would be achieved with the surgery,

in the Period.

5.    All documents, or copies of documents, recording information of infection control policies or procedures used at the Premises in the Period.

6.    All documents, or copies of documents, recording information of the terms of service between you and the Defendants in the Period.

7.    All documents, or copies of documents, recording information of the termination of any contract for services between you and the Defendants in the Period.

8.    All invoices, or copies of invoices, issued by you to the Defendants during the Period.

9.    All documents, or copies of documents, recording information of the number of BAS procedures performed by you at the Premises in the Period on a daily, weekly or yearly basis.

10.    All documents, or copies of documents, recording information of complication rates for BAS performed by you at the Premises in the Period.

11.    All documents, or copies of documents, recording information of audits, including the results of any audits, carried out into the outcomes from BAS performed by you at the Premises in the Period.

12.    All documents, or copies of documents, recording information of the rate of revision surgery for patients who underwent BAS performed by you at the Premises in the Period.

13.    All documents, or copies of documents, recording information of revision surgery performed by the fifth defendant on patients who underwent BAS performed by you at the Premises in the Period.

14.    All documents, or copies of documents, recording information of any advertising campaign or advertising material published by the Defendants to be available to the public in any form in the Period.

15    All documents, or copies of documents, recording information of advertising or marketing strategies for the Defendants in the Period.

16.    All documents, or copies of documents, recording information of how the cost of BAS to be offered to patients at the Premises was calculated in the Period.

17.    All documents, or copies of documents, recording information of the job descriptions, defined responsibilities and roles of:

(a)    The surgical or medical director,

(b)    The director of nursing,

(c)    The post-operative manager,

(d)    The general manager,

(e)    The chief executive officer,

(f)    The operations manager, and

(g)    The marketing manager or director of marketing

of the Defendants in the Period.

18.    All documents, or copies of documents, recording information of the licensing, accreditation and certification of the Premises, including under the Private Health Facilitation Regulation 2010 for the performance of BAS and/or the administration of anaesthesia on patients undergoing BAS in the Period.

19.    All documents, or copies of documents, recording information of compliance or noncompliance with the requirements of any regulatory, licensing or quality control body in relation to the performance of BAS and/or the administration of anaesthesia at the Premises in the Period.

20.    All documents, or copies of documents, recording information of advertisements published by the Defendants for applications by doctors to become accredited for and to perform BAS or administer anaesthesia for BAS at the Premises in the Period.

21.    All documents, or copies of documents, recording information of your qualifications, and your training and experience in BAS and/or in the administration of anaesthesia and sedation used in BAS in the period prior to 14 September 2017.

22.    All documents, or copies of documents, recording information of the existence of any data or library maintained or operated by the Defendants in the Period relating to:

(a)    the risk of injury and complications of BAS,

(b)    the risk of injury and complications to patients undergoing BAS at the Premises,

(c)    the availability of measures to minimise and/or obviate the risk of injury and/or complications from BAS,

(d)    the availability of measures to minimise and/or obviate the risk of injury and/or complications in patients undergoing BAS at the Premises.

65    It appears from the materials in the Court Book that, at about the same time, other surgeons who had worked at TCI clinics received subpoenas to produce documents issued by the plaintiffs in the TCI Proceeding. The materials in the Court Book include:

(a)    an email from [Dr 1] dated 29 January 2019 giving written notice to Avant of receipt of such a subpoena and providing a copy of (at least part of) the subpoena;

(b)    an email from [Dr 2] dated 7 February 2019 giving written notice to Avant of receipt of such a subpoena and providing a copy of (at least part of) the subpoena; and

(c)    an email from [Dr 3] dated 18 February 2019 giving written notice to Avant of receipt of such a subpoena and providing a copy of the covering letter from Turner Freeman.

66    On or about 8 February 2019, Avant instructed counsel to advise as to whether there were grounds to challenge the subpoenas ([REDACTED]).

Correspondence between MDL and Avant (February 2019)

67    As noted above, MDL were appointed by Avant to act on Dr Darshn’s behalf in the Scotford Proceeding. Pursuant to the terms of the insurance policy, Avant had the conduct of the matter.

68    On 4 February 2019, Mr Regener of MDL sent an email to Judith Soo of Avant in relation to the Scotford Proceeding. Mr Regener’s email forwarded an email of the same date from Yeldham Price O’Brien Lusk (YPOL), the firm of solicitors acting for the third defendant in the Scotford Proceeding. It seems that the third defendant was now Certain Underwriters at Lloyds subscribing to policy 04012 (referred to as “Newline” in YPOL’s email). The email from YPOL was sent at 9.15 am and stated that the firm’s client would be seeking a three-week adjournment of a directions hearing that was due to take place that day in the Scotford Proceeding. The reasons for seeking the adjournment, which were set out in YPOL’s email, related to the overlap between the Scotford Proceeding and the TCI Proceeding (referred to as the “Group Proceeding” in YPOL’s email). [REDACTED]:

[REDACTED]

69    As indicated in the above extract, attached to YPOL’s email was a judgment of Garling J in the TCI Proceeding. The judgment was: Rickhuss v The Cosmetic Institute Pty Ltd [2018] NSWSC 1848, which had been delivered on 4 December 2018.

70    MDL’s email to Avant (forwarding YPOL’s email and the attached judgment of Garling J) stated as follows:

[REDACTED]

The references in the email to various paragraphs are to paragraphs in the judgment of Garling J.

71    The judgment of Garling J in the TCI Proceeding related to two notices of motion that had been filed by the defendants to that proceeding. The first had been filed by the first to fourth defendants, referred to as the “TCI parties”. This motion primarily sought an order that the proceedings not continue as a representative action under Pt 10 of the Civil Procedure Act. Other relief was also sought, including the striking out of a number of paragraphs in the statement of claim. The second notice of motion had been filed by Dr Dona. This sought similar orders. Dr Dona also sought an order that the proceeding in its entirety be dismissed or the pleading struck out.

72    The judgment of Garling J contained a description of the claims made in, and the progress of, the TCI Proceeding at [4]-[26]. It is useful to set this out:

Main Proceedings

4    The representative proceeding was commenced by Statement of Claim filed on 14 September 2017.

5    The group members are defined in the Statement of Claim as being persons who underwent breast augmentation surgery at various premises associated with first to fourth defendants in NSW (Parramatta, Bondi Junction, Concord and Guildford) or Queensland (Southport).

6    The second to fourth defendants are subsidiaries of the first defendant. The second defendant, The Cosmetic Institute Parramatta Pty Ltd (in liq), entered into liquidation on or about 5 October 2016. Leave to proceed against it has been granted.

7    The fifth defendant is a registered medical practitioner practising as a plastic and reconstructive surgeon who was a director and the beneficial shareholder of the second, third and fourth defendants, and who is and was the surgical director of the TCI parties. It is also alleged that he devised the method of breast augmentation utilised by the TCI parties, and to have trained and supervised doctors at TCI who performed these surgeries.

8    It is alleged that group members were operated on and administered anaesthesia by servants and/or agents of the first, second, third or fourth defendant. These surgeons and anaesthetists may be referred to as TCI Surgeons and TCI Anaesthetists, respectively. It is further alleged that several of the group members were operated on by TCI Surgeons trained by, or under the supervision of, the fifth defendant, in accordance with accreditation and training contracts between TCI Surgeons and the first, second, third or fourth defendants.

9    The Statement of Claim pleads that the system of breast augmentation surgery performed at the premises of the TCI facilities (TCI Parramatta Premises, TCI Bondi Premises, TCI Southport Premises, Concord Private Hospital and Holroyd Private Hospital) from 2012 had the following characteristics:

(1)    Inadequate infection control procedures during the surgeries;

(2)    Inadequate capacity to access urgent surgical or medical assistance in the event of emergencies arising during surgeries;

(3)    In respect of the second defendant and the third defendant’s premises, no capacity to legally administer general anaesthesia; and no licence to admit patients and provide medical, surgical or other prescribed treatment within the meaning of ss 4(1), 12(2), 33 and 41(1) of the Private Health Facilities Act 2007.

10    The Statement of Claim pleads that the plaintiffs and group members each individually:

(1)    accessed promotional material published by the defendants on their website or on social media sites;

(2)    attended at a TCI premises for one pre-surgery consultation with a TCI surgeon and/or cosmetic consultant who was the servant or agent of the TCI parties. The consultations occurred on average between one day and two months prior to each plaintiff or group member’s breast augmentation surgery and cost $150;

(3)    underwent breast augmentation surgery at the premises of the TCI parties; and

(4)    suffered a complication during surgery or post-operatively.

11    The group members are alleged to have been operated on using the so-called “One Size Fits All Approach”, a phrase coined by counsel for the plaintiffs. This approach is said to have increased the risk of 11 particularised complications of breast augmentation surgery, including haemorrhage; excessive tissue trauma; infection; scarring; and local anaesthetic toxicity, leading to cardiac arrest, pneumothorax and death.

Causes of Action

12    The claims of the group members are made both at common law in negligence, and in statutory causes of action arising from the Australian Consumer Law (“ACL”) contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (“CC Act”).

Negligence

13    It is alleged that the defendants owed the plaintiffs and group members a duty to exercise reasonable care and skill in the provision of advice about, and in the performance of, breast augmentation surgery, and that the defendants breached this duty of care by failing to exercise reasonable care and skill to avoid the foreseeable risk of complications. The defendants are said to have so breached their duties of care in 20 particularised ways.

14    As a result, it is alleged that each plaintiff and group member suffered injury, loss and damage as a result of undergoing breast augmentation surgery.

15    Further and in the alternative, the plaintiffs alleged that the defendants knew or ought to have known that the plaintiffs and group members would act in reliance on 36 particularised representations by consenting to and undergoing the surgeries. Therefore, defendants are said to have owed a duty to take reasonable care in making those representations.

Consumer Law

16    The plaintiffs also allege breaches of the ACL, and in particular, the consumer guarantee provisions in ss 60, 61(1) and 61(2) of the ACL.

17    It is pleaded that breast augmentation surgery is a “service” (of a kind ordinarily acquired for personal use) within the meaning of s 3 of the ACL, which was supplied to the plaintiffs and group members as consumers within the meaning of s 3 of the ACL. The surgeries were therefore services provided in trade or commerce within the meaning of s 4 of the CC Act and s 2 of the ACL.

18    By reason of the defendants’ system of breast augmentation surgery, the surgeries “acquired” by the plaintiffs and group members are said to have been in breach of the guarantee for the supply of services with due care and skill, and the supply of services which were reasonably fit for their purpose. Further, it is pleaded that the surgeries were not of the nature, quality, state or condition that might reasonably be expected to achieve the results advertised and sought (including enlargement of a woman’s breasts, improvement of the aesthetic appearance of a woman’s breasts, and increased self-esteem and confidence).

19    The breaches of those consumer guarantees are said to be failures, or major failures, within the meaning in s 268 of the ACL.

20    By reason of these failures, the representations made by the defendants to the plaintiffs and group members are said to be misleading representations with respect to future matters (ACL, s 4), misleading or deceptive conduct (ACL, s 18), and, further or in the alternative, false or misleading representations (ACL, s 29(1)(b), s 29(1)(m) and/or s 34).

Common Questions

21    As required by s 161(1)(c) of the Civil Procedure Act, the Statement of Claim includes a statement of the common questions of law or fact which the plaintiffs allege will arise in the course of the hearing of the group proceedings. It is unnecessary to set out in detail these common questions.

22    The Statement of Claim does not differentiate between whether the questions are of law or fact. However, most of the common questions of fact go to the relationship between the TCI Surgeons and the first to fourth defendants, whether the first defendant controlled and directed the activities and services offered to the plaintiffs and group members by the second to fourth defendants, and whether an extensive list of representations particularised in the Statement of Claim were made to the plaintiffs and group members by the TCI Surgeons or any of the defendants.

23    A further four identified common questions of fact relate to the role of the fifth defendant in designing, devising, supervising, training and accrediting the TCI Surgeons, including in their alleged use of the “One Size Fits All Approach” to the undertaking of breast augmentation surgery.

24    The common questions of law identified by the Statement of Claim relate to whether the defendants breached their common law duty to exercise due care and skill in performing breast augmentation surgery, including whether the adoption of the “One Size Fits All Approach” was negligent; whether any representations made by the defendants were misleading with respect to future matters, or misleading and deceptive, or breached a guarantee, for the purposes of the ACL; or whether the representations were negligent representations.

25    In the course of the hearing of the Motions, in light of the fact that none of the defendants have filed any defence, no additional common questions were identified. It might be reasonably anticipated that the defence will raise matters of fact and law which would be common.

Defences

26    The proceedings are presently at a preliminary stage. The defendants have not yet filed Defences. No further interlocutory steps have as yet been taken.

73    After setting out the parties’ submissions, Garling J considered those submissions at [73]-[107]. In his Honour’s view, there were a number of important common questions arising from the claims of the plaintiffs and group members (at [74]-[77]). In his Honour’s view, those questions shared a factual or legal matrix and were relevant to the claims of the plaintiffs and group members. His Honour then turned to whether the interests of justice favoured the proceeding remaining as a representative action, concluding that they did (at [106]). Garling J dismissed both notices of motion.

74    On 7 February 2019, Sangeeta Sharmin of MDL sent an email to Ms Soo of Avant in relation to the Scotford Proceeding. The email was in the following terms:

[REDACTED]

Dr Darshn’s first conversation with Avant (18 February 2019)

75    On 18 February 2019, Dr Darshn telephoned Avant’s Medico-Legal Advice Service and spoke with Ms Pickett. The Medico-Legal Advice Service is a service offered by Avant to its members. Members can call a 24-hour telephone line to seek legal advice relating to their practice.

76    To the extent that there were differences between Dr Darshn’s account of this conversation and the account of Ms Pickett, I prefer the account of Ms Pickett. In addition to the reasons given at [32] and [33] above, Ms Pickett’s account was supported by a contemporaneous file note of the conversation, together with evidence of her usual practice in relation to such conversations.

77    During the call, Dr Darshn informed Ms Pickett that he had received a subpoena from Turner Freeman, but had not responded to it. Dr Darshn told Ms Pickett that the subpoena was returnable on 22 February 2019.

78    In accordance with her usual practice, Ms Pickett advised Dr Darshn that the subpoena was a court order and could not be ignored, and that he must respond to the subpoena.

79    In accordance with her usual practice, Ms Pickett directed Dr Darshn to the schedule to the subpoena to identify the documents being sought. Dr Darshn informed Ms Pickett that the subpoena sought invoices from a previous company.

80    Ms Pickett informed Dr Darshn that his response should set out all of the documents that he was producing in response to the subpoena. Ms Pickett gave him some sample wording for the email.

81    Ms Pickett did not ask Dr Darshn to provide a copy of the subpoena to Avant and Dr Darshn did not do so.

82    Ms Pickett did not ask Dr Darshn who the parties to the proceeding were.

83    To the extent that Dr Darshn gives evidence that he asked Ms Pickett whether he was part of the class action and whether he should be worried about the class action, I do not accept that this formed part of the conversation. For the reasons given earlier, I prefer Ms Pickett’s account of the conversation to Dr Darshn’s.

Dr Darshn’s second conversation with Avant (22 March 2019)

84    On 22 March 2019, Dr Darshn again telephoned Avant’s Medico-Legal Advice Service. This time he spoke with Ms Gillman.

85    To the extent that there were differences between Dr Darshn’s account of this conversation and the account of Ms Gillman, I prefer the account of Ms Gillman. In addition to the reasons given at [32] and [34] above, Ms Gillman’s account was supported by a contemporaneous file note of the conversation.

86    Dr Darshn informed Ms Gillman that he had received a letter from Don Cameron & Associates (a firm of solicitors) threatening to enter default judgment in a court proceeding if no response was received by a certain date, and that the due date had already passed. Ms Gillman asked Dr Darshn to send the letter to her, and he did so during the telephone call.

87    The letter from Don Cameron & Associates, which was dated 11 March 2019, related to the Summers-Hall Proceeding, in which Don Cameron & Associates were acting for the plaintiff. The letter did not attach the statement of claim. The letter stated:

I refer to the Statement of Claim in the above matter which was personally served upon you on 19 November 2018. I hold an affidavit of service to that effect.

More than 28 days have passed since service and I note you have failed to file a defence.

I am instructed to enter default judgment against you unless you file a defence within seven days of this letter.

88    Dr Darshn said to Ms Gillman that he had no recollection of receiving the statement of claim and that he would have sent it to Avant if he had received it. Ms Gillman’s file note includes: “Possibility it was served on another dr at clinic who looks like him but who has now left. Clinic has no recollection of matter.” It may be that words to this effect were spoken by Dr Darshn during the conversation.

89    Ms Gillman provided some advice to Dr Darshn regarding how he should respond to the correspondence. She told him that she would refer his email directly to the Claims team to ensure they were aware of the threat of default judgment and to assess whether the claim fell under Dr Darshn’s policy.

90    Dr Darshn then raised a second issue with Ms Gillman, referring to a call he had placed to Avant’s Medico-Legal Advice Service in February 2019 regarding a subpoena he had received from Turner Freeman. Dr Darshn said that he had sent the invoices called for by the subpoena to Turner Freeman. Reference was then made to the fact that the documents should have been produced to the court rather than to Turner Freeman. Ms Gillman’s file note records: “Explained should have gone to the court”. This may be a reference to something Turner Freeman had explained to Dr Darshn and he told Ms Gillman during the call.

91    During the call, Ms Gillman became aware that the proceeding in which the subpoena had been issued was the TCI class action. Ms Gillman was already aware of the existence of the TCI class action and of the fact that Turner Freeman were acting for the plaintiffs. Ms Gillman knew about these matters from reading stories in the media about the class action, and from speaking with Paul Tsaousidis (the head of Avant’s NSW legal department) about the proceeding. Ms Gillman knew that the defendants to the proceedings were various TCI entities and Dr Dona. She was broadly aware of the allegations in the TCI class action, and knew that these included that there was a one-size-fits-all system and that the TCI entities had made various representations to their patients that were said to be misleading or deceptive.

92    During the call, there was discussion of the fact that Avant had been contacted by other doctors who had received subpoenas in the TCI Proceeding. Dr Darshn said that he was aware that other doctors had received advice from Avant about the subpoenas, but that he had nothing significant to produce, only a few invoices.

93    Ms Gillman gave evidence (which I accept) that, at the time of the conversation with Dr Darshn, she was already aware of the subpoena in the TCI class action (which had been served on other doctors who were insured by Avant), but could not recall if she had actually seen it. Ms Gillman gave evidence (which I accept) that she was aware, from talking to Mr Tsaousidis about it, that the subpoena was very broad and unusually long. Ms Gillman gave evidence (which I accept) that Mr Tsaousidis had a copy of the subpoena.

94    During the call, Ms Gillman suggested that Dr Darshn send Avant a copy of the subpoena so he could be included in a list of other colleagues in case further advice was required. However, he did not do so.

95    To the extent that Dr Darshn gives evidence that he asked Ms Gillman whether he was part of the class action, I do not accept that this formed part of the conversation. It does not fit with Ms Gillman’s evidence (which I accept) that he was aware that he was not a defendant to the class action. I also do not accept Dr Darshn’s evidence that he asked whether he should be worried about the class action. This does not fit with the logic of the conversation as described in Ms Gillman’s evidence.

96    On 22 March 2019, following the telephone conversation with Dr Darshn, Ms Gillman sent an email to Avant’s National Claims Acceptance team, Stephanie Penney (who worked in Avant’s Claims team) and Mr Tsaousidis. The first part of the email was addressed to Ms Penney and the National Claims Acceptance team and related to the letter Dr Darshn had received regarding the Summers-Hall Proceeding. The second part of the email was addressed to Mr Tsaousidis and related to the subpoena. In that part of the email, Ms Gillman stated:

Dr D also got a subpoena from Turner Freeman. He had a few invoices but sent them directly to Turner Freeman not the Court. I have asked him to send us his email / subpoena so I can send them to you and he can be added to your list. Apparently his colleagues have been very complementary (sic) of the help you have been providing them.

(Emphasis added.)

97    The reference in that email to a “list” was to a list of the doctors who Mr Tsaousidis was assisting in relation to the subpoena.

98    On 28 March 2019, having not received a copy of the subpoena from Dr Darshn, Ms Gillman sent an email to Dr Darshn as follows:

I understand from Stephanie Penney that lawyers have now been instructed to assist you with the matter we discussed on the phone on 22 March [i.e. the Summers-Hall Proceeding].

You also mentioned that you had received a subpoena from Turner Freeman, and I suggested you send through the subpoena and related correspondence so the lawyer co-ordinating these matters (Paul Tsaousidis) could provide further advice, if required.

Paul would be happy to assist with the subpoena issue if you could send through the documentation.

99    Notwithstanding this invitation or suggestion, Dr Darshn did not provide a copy of the subpoena to Avant.

100    In the course of the cross-examination of Ms Gillman, the following exchange took place:

[Counsel for Dr Darshn]: You didn’t suggest during the conversation that the subpoena should be sent in as a form of notification of a potential claim against Dr Darshn?---No, not in the context of that call. We – at that stage, he wasn’t a defendant to the claim.

Right. But it was a proceeding against his former clinic alleging systemic issues; correct?---Yes.

And you knew that?---Yes.

So there was a possibility he might down the track become a defendant?---Yes, that’s a possibility.

…

[Counsel for Dr Darshn]: Ms Gillman, I think your answer was that part of the service that the MLA provides is advice about whether incidents should be notified to Avant?---Yes.

And, by that, it means – by that, I mean incidents that may lead to a claim in the future?---Yes.

And that’s what is advertised on MLAs website, for example?---Yes. Yes, on – yes.

And given that that was part of the role offered, did it occur to you – well, am I to take it that it didn’t occur to you that Dr Darshn should be given advice about notification in relation to the TCI proceeding?---So are you asking did it occur to me, or should I have done – so just I want to - - -

Okay. Can I - - -?---I want to be clear about what the question is you’re asking me.

I apologise. Yes. I’m putting a proposition it did not occur to you to advise Dr Darshn to fill out a notification form in relation to the TCI proceeding?---I was – at the time and I – I advised Dr Darshn to send the subpoena in in case because, at that stage, we didn’t know what was going to happen or where the subpoena might go. And so my advice was to note a – when we talk about a notification – to send that in so we were aware of – of the subpoena and we could assist him with the subpoena. We – in terms of filling in a notification form, we don’t insist on doctors filling in notification forms to make a claim as such. My suggestion was he send the subpoena to us so that we were aware of, you know, the – be able to assist him with that subpoena.

Well, I think your evidence is that you asked him to send the subpoena, in your affidavit that this is - - -?---Yes, that’s right.

In case he required further advice about it?---That’s right.

There was no mention during the conversation about sending in the subpoena as a form of claim notification or notification of a potential claim?---No. Not in the context of the conversation we were having at that particular time because the focus was on his – his other – other claim and the subpoena at the time.

101    In his third affidavit, Dr Darshn stated at paragraph 5 that: at the time of the two conversations with Avant’s Medico-Legal Advice Service he was not aware of the effect of s 40(3) of the Insurance Contracts Act and, in particular, did not know that he would only be covered for claims made against him after the expiry of his policy if he provided Avant with written notification of facts and circumstances giving rise to such claims; he understood that he was required to notify Avant of facts and circumstances giving rise to future claims, but did not know this had to be provided in writing. I accept this evidence of Dr Darshn, which was maintained during cross-examination.

The Summers-Hall Proceeding (notified to Avant in March 2019)

102    As noted above, during the conversation with Ms Gillman on 22 March 2019, Dr Darshn emailed her the letter from Don Cameron & Associates regarding the Summers-Hall Proceeding. He thereby gave written notice to Avant of the claim in that proceeding.

103    Avant accepted Dr Darshn’s claim for indemnity in respect of the Summers-Hall Proceeding. Avant instructed MDL to act on Dr Darshn’s behalf in the proceeding. On 26 March 2019, Avant sent a letter to Dr Darshn in relation to the Summers-Hall Proceeding. The letter included the following statements:

Thank you for your recent correspondence in relation to the above patient and for speaking with me yesterday.

I confirm I have been appointed as Claims Manager and as such, I will be responsible for the overall direction and strategy for this claim.

…

I have also instructed Makinson D’Apice Lawyers to act on your behalf in this matter and a solicitor will be in contact with you shortly to discuss the claim further.

…

Avant will conduct the claim on your behalf. You will be consulted and kept informed at all appropriate stages and whilst your views will be taken into account, Avant is responsible for the management of the claim.

Your Insurance Policy requires you to cooperate with the solicitor and provide all documentation requested and follow the advice. The instructed solicitor will keep Avant Mutual Group Limited informed on all relevant matters.

104    The defendants to the Summers-Hall Proceeding were: TCI; TCI Parramatta; Darshn Cosmetics Pty Ltd; and Dr Darshn. It is not necessary for present purposes to set out details of the statement of claim in the proceeding.

Correspondence between MDL and Avant (May 2019)

105    On 22 May 2019, Sangeeta Sharmin of MDL sent an email to Ms Soo of Avant in relation to the Scotford Proceeding and the Summers-Hall Proceeding. In relation to the Scotford Proceeding, the email stated in part:

[REDACTED]

106    In relation to the Summers-Hall Proceeding, the email from MDL to Avant included the following:

[REDACTED]

107    The attachments to MDL’s email included an affidavit of Gavin Hollamby, a partner of the firm Lander & Rogers, dated 14 May 2019 and filed in the Scotford Proceeding. The affidavit indicated that Lander & Rogers were now acting for Newline. The affidavit was made in support of a notice of motion filed by Newline on 13 May 2019 seeking a stay of the Scotford Proceeding pending the conclusion of the TCI Proceeding (referred to as the “Group Proceeding” in the affidavit). The affidavit described the TCI Proceeding and stated at paragraph 11 that the first to fourth defendants to the TCI Proceeding (referred to as the “TCI Entities”) were all in liquidation. It was also stated, at paragraph 12, that Mr Hollamby believed that the liquidators of the TCI Entities did not have funds to conduct the defence of the TCI Proceeding. After outlining the current status of the TCI Proceeding, and describing the Scotford Proceeding, the affidavit contained a section headed “Similarities between the claims in the two proceedings”, that is, the TCI Proceeding and the Scotford Proceeding. The annexures to Mr Hollamby’s affidavit included the statement of claim in the TCI Proceeding.

Dr Darshn ceases to hold insurance with Avant (30 June 2019)

108    On 30 June 2019, Dr Darshn ceased to hold insurance with Avant. On 1 July 2019, he commenced to hold insurance with MIGA.

Developments regarding the Scotford Proceeding and Summers-Hall Proceeding

109    It appears that Ms Scotford opted out of the TCI Proceeding prior to the first opt-out deadline (30 July 2019) (see Dr Darshn’s first affidavit at paragraph 21 and his outline of opening submissions at paragraph 19). The Scotford Proceeding is ongoing.

110    On or about 2 October 2019, the claim concerning Ms Summers-Hall was finalised by Avant following a confidential mediation.

Joinder of Dr Darshn to TCI Proceeding (June 2020)

111    On or about 30 June 2020, Dr Darshn received a letter from Turner Freeman dated 19 June 2020 stating that they acted for the plaintiffs in the TCI Proceeding and that Dr Darshn had been named as a defendant to that proceeding. The letter enclosed a copy of the plaintiff’s further amended statement of claim (FASOC) in the TCI Proceeding.

112    As is apparent from the mark-up on the FASOC, the number of plaintiffs had been increased from 5 to 12 and the number of defendants had been increased from 5 to 16. Dr Darshn was named as the sixteenth defendant. In addition to Dr Darshn, 10 other surgeons had been added as defendants. While retaining the basic structure of the original statement of claim, the FASOC contained extensive amendments reflecting the joinder of the additional defendants. The group definition in paragraph 2 was amended to read (omitting the mark-up):

The group members are persons who:

(a)    Had breast augmentation surgery (BAS) on or before 29 October 2017 at any of the following premises (TCI Premises):

(i)    Smith Street Parramatta, New South Wales (TCI Parramatta Premises);

(ii)    Hollywood Avenue, Bondi Junction, New South Wales (TCI Bondi Premises);

(iii)    Suite 1, 98 Marine Parade, Southport, Queensland (TCI Southport Premises);

(iv)    Burwood Road, Concord, New South Wales (Concord Private Hospital);

(v)    Chetwynd Road, Guildford, New South Wales (Holroyd Private Hospital).

(b)    Had BAS performed by, or with the assistance of, one or more of the fifth to sixteenth defendants;

(c)    Consulted one or more of the fifth to sixteenth defendants about the performance of BAS at TCI Premises prior to undergoing BAS;

(d)    Had BAS using the “One Size Fits All” Approach (refer to paragraph 21);

(dd)    Consulted one or more of the fifth to sixteenth defendants following BAS;

(e)    Had BAS performed under anaesthesia administered by anaesthetists who were the servants and/or agents of the first, second, third and/or fourth defendants (TCI Anaesthetists); and,

(f)    Suffered injury, loss and damage as a result of undergoing BAS.

113    A new paragraph 2A stated that the group members consisted of at least 11 sub-groups of women whose BAS was performed by one or more of the sixth to sixteenth defendants. The last of these sub-groups, referred to as the “Darshn Sub-Group”, comprised “group members including Ms Sanchez who suffered injury, loss and damage in consequence of undergoing BAS performed by the sixteenth defendant”, that is, Dr Darshn. Ms Sanchez was named as the twelfth plaintiff in the FASOC.

114    Paragraph 14K of the FASOC, which related to Dr Darshn, was in the following terms:

At all material times, the sixteenth defendant (Sri Darshn):

(a)    Was a registered medical practitioner without any specialist qualifications, training or experience;

(b)    Was the servant and/or agent of The Cosmetic Institute, TCI Parramatta, TCI Bondi and TCI Southport;

(c)    Was trained, supervised, or assisted by the fifth defendant to carry out for or on behalf of The Cosmetic Institute, TCI Parramatta, TCI Bondi and/or TCI Southport the following duties or activities in relation to patients:

(i)    Pre-operative consultations with, and advice to, women about BAS;

(ii)    Obtaining consent from women to undergo BAS;

(iii)    BAS under conscious sedation or general anaesthesia;

(iv)    The injection of local anaesthetic agents during conscious sedation of women undergoing BAS;

(v)    The One Size Fits All Approach to BAS;

(vi)    Post-BAS follow-up consultations;

(vii)    The diagnosis and treatment of BAS complications; and

(viii)    Monitoring and improvement of their BAS complication rates;

(d)    Carried out for or on behalf of The Cosmetic Institute, TCI Parramatta, TCI Bondi and TCI Southport the following duties or activities:

(i)    Pre-operative consultations with, and advice to, women about BAS;

(ii)    Obtaining consent from women to undergo BAS;

(iii)    BAS under conscious sedation or general anaesthesia;

(iv)    The injection of local anaesthetic agents during conscious sedation of women undergoing BAS;

(v)    The One Size Fits All Approach to BAS;

(vi)    Post-BAS follow-up consultations;

(vii)    The diagnosis and treatment of BAS complications; and

(viii)    Monitoring and improvement of their BAS complication rates.

(e)    Performed BAS on a sub-group of group members, including Ms Sanchez, who suffered injury, loss and damage in consequence (the Darshn Sub-Group).

115    Paragraph 21 of the FASOC, which related to the “One Size Fits All Approach”, was in substantially the same terms as the original statement of claim. Paragraph 23, which set out the alleged representations, was unchanged from the original statement of claim. Paragraph 25, which set out the common questions, was also unchanged. The allegations relating to Ms Sanchez were set out at paragraphs 77LA-77LL.

116    Paragraph 81L contained allegations that Dr Darshn breached his duty of care to Ms Sanchez and the Darshn Sub-Group members. It was in the following terms:

The sixteenth defendant breached his duty of care to the twelfth plaintiff and the Darshn Sub-Group members by:

(a)    Performing BAS on the twelfth plaintiff and Darshn Sub-Group members in an incompetent manner;

(b)    Performing, or assisting in the performance of, BAS in accordance with the One Size Fits All Approach on the twelfth plaintiff and the Darshn Sub-Group members;

(c)    Failing adequately to inform the twelfth plaintiff and the Darshn Sub-Group members of the BAS Complications;

(d)    Failing to inform the twelfth plaintiff and the Darshn Sub-Group members that they were at an increased risk of requiring revision surgery in the future;

(e)    Failing to carry out adequate infection control procedures for BAS on the second plaintiff (sic) and the Darshn Sub-Group members;

(f)    Failing in the planning and performance of BAS to consider differences in the anatomy of the s (sic) twelfth plaintiff and the Darshn Sub-Group members;

(g)    Failing to provide adequate review and follow up of the twelfth plaintiff and the Darshn Sub-Group members following BAS;

(h)    Failing to decline to perform BAS in circumstances where BAS was considered technically difficult;

(i)    Failing to decline to perform BAS in circumstances where BAS in the absence of mastopexy or other different or additional surgical techniques were indicated;

(j)    Performing, or assisting in the performance of, BAS when he knew or ought to have known that performing BAS without general anaesthetic and under twilight sedation and local anaesthetic would result in patients experiencing pain and moving during the surgery thereby increasing the risk of BAS Complications;

(k)    Failing to inform the twelfth plaintiff and the Darshn Sub-Group members that performing BAS without general anaesthetic and under twilight sedation and local anaesthetic would increase the risk of BAS Complications;

(l)    Performing, or assisting in the performance of, BAS when he knew or ought to have known that performing BAS without general anaesthetic and under twilight sedation and local anaesthetic would result in patients experiencing pain and moving during the surgery which would, in turn, require the administration of increasing cumulative doses of local anaesthetic thereby increasing the risk of BAS Complications;

(m)    Wrongly considering that he was fit to carry out the following duties or activities:

(i)    Pre-operative consultations with, and advice to, women about BAS;

(ii)    Obtaining consent from women to undergo BAS;

(iii)    BAS under conscious sedation or general anaesthesia;

(iv)    The injection of local anaesthetic agents during conscious sedation of women undergoing BAS;

(v)    The One Size Fits All Approach to BAS;

(vi)    Post-BAS follow-up consultations;

(vii)    The diagnosis and treatment of BAS complications; and

(viii)    Monitoring and improvement of their BAS complication rates;

(n)    Failing to inform the second plaintiff (sic) and the Darshn Sub-Group members that the Defendants’ System of BAS put them at an increased risk of the BAS Complications;

(o)    Failing adequately to monitor the BAS complications associated with the performance of the One Size Fits All Approach to BAS on the twelfth plaintiff and the Darshn Sub-Group members;

(p)    Failing adequately to treat or assist in the treatment of BAS complications associated with the performance of the One Size Fits All Approach to BAS on the twelfth plaintiff and the Darshn Sub-Group members;

(q)    Failing to advise the first to fifth defendants to cease the Defendants’ System of BAS and the One Size Fits All Approach to BAS when he knew or ought to have known that it had and would continue to produce BAS Complications and harm to patients, including the twelfth plaintiff and the Darshn Sub-Group members;

(r)    Failing to cease performing BAS using the Defendants’ System of BAS when he knew or ought to have known that he had and would continue to produce BAS Complications and harm to patients, including the twelfth plaintiff and the Darshn Sub-Group members

(s)    Making the Representations to the twelfth plaintiff and the Darshn Sub-Group members;

(t)    Making the Representations to the twelfth plaintiff and the Darshn Sub-Group members when he knew or ought to known that the second plaintiff and the Nguyen (sic) Sub-Group members would rely on them to undergo BAS and that they were untrue or inaccurate.

117    In paragraph 100 of the FASOC it was alleged that the plaintiffs and group members suffered injury, loss and damage by reason that (among other things) the defendants were negligent. Particulars of injuries and particulars of loss and damage are provided, albeit in generic terms.

118    It is common ground (and, in any event, I find) that Ms M falls within the group member definition in the TCI Proceeding. There is no evidence that she has opted out of the TCI Proceeding.

119    In July and August 2020, Dr Darshn sought indemnity from Avant in respect of the claims made against him in the TCI Proceeding.

120    By letter dated 1 September 2020, Avant declined to cover Dr Darshn in respect of the claims made against him in the TCI Proceeding. The letter stated in part:

We regret that we must decline your request for indemnity under the Policy. We explain our reasons for that below.

The Proceedings were initially commenced on 14 September 2017, and you were not named as a defendant.

On 18 February 2019 you contacted our Medico-legal Advisory Service (MLA) and advised you had received a subpoena in the Proceedings.

On 22 March 2019 you again contacted the MLA and advised you had sent the documents requested in the subpoena to Turner Freeman.

You were aware that other colleagues had received similar subpoenas and had sought our assistance with responding to same. Despite our requests, you did not send a copy of the subpoena to us, nor did you seek our assistance in responding to the subpoena.

On 19 June 2020 a Further Amended Statement of Claim was filed in the proceedings, which named you as the sixteenth defendant.

On 8 July 2020 you contacted the MLA and advised you had received a Statement of Claim in the Proceedings, following which you forwarded the document to Avant.

You held policies with us (renewed annually) for the period 27 September 2011 to 30 June 2019. Relevantly those policies respond to claims made and notified during the relevant period of insurance.

The claim against you in these proceedings was made on 19 June 2020, after all of the policies had expired. Therefore as there was no claim within a relevant policy period, none of those policies prima facie respond.

That said the only policy which could potentially respond to these proceedings is that in force as at 18 February 2019 and 22 March 2019 - the applicable policy wording for your Policy was v6.0 (attached).

Part 3 of the policy wording on page 21 provides that “This policy operates on a claims made and notified basis. It covers you for claims (including legal defence costs) made by patients and other third parties against you and which you notify to us within the policy period when the healthcare giving rise to the claim occurred after the retroactive date.”

In order for your policy to respond to this claim, both the claim by the patient/third party and the notification by you to us must have occurred prior to 30 June 2019.

The policy further states on page 22 that “You must notify us in writing as soon as practicable of any claim.”

Section 40(3) of the Insurance Contracts Act may provide relief where a notice of circumstances giving rise to a claim is made during the relevant policy period. However, again, for that relief to be available the relevant notice must be in writing.

Your verbal contact to the MLA regarding receipt of the subpoena in the Proceedings does not amount to notification under the policy. You did not provide the subpoena to us, nor seek our assistance in dealing with it.

Written notification cannot be said to have occurred prior to you providing to us the Further Amended Statement of Claim naming you as a defendant to the proceedings in July 2020, at which point your Policy had expired.

Accordingly, we advise that your claim is not covered by the Policy.

121    In paragraph 25 of his outline of opening submissions, Dr Darshn contends that: nine of the ten other surgeons joined to the TCI Proceeding have been granted indemnity by Avant in relation to the TCI Proceeding; in the case of a number of them, indemnity was granted by Avant under policies in force before the commencement of the TCI Proceeding – suggesting that Avant had accepted notification of individual patient claims and/or written notification of receiving the subpoena as effective notification of the TCI Proceeding claims. In support of those propositions, Dr Darshn refers in footnote 21 of his outline of opening submissions to a number of documents in the Court Book. The documents referred to in that footnote establish that the following four surgeons, who were joined as defendants to the TCI Proceeding, were granted indemnity by Avant in respect of the claims made against them by named plaintiffs in the TCI Proceeding: [Dr 3]; [Dr 4]; [Dr 1]; and [Dr 5]. [REDACTED]:

(a)    [REDACTED];

(b)    [REDACTED];

(c)    [REDACTED];

(d)    [REDACTED].

122    It appears from a letter from Carter Newell Lawyers (the solicitors acting for Avant in this proceeding) to William Roberts Lawyers (the solicitors acting for Dr Darshn) dated 8 April 2021 that Avant has also granted indemnity to [REDACTED].

Consideration

123    I will now address in turn each of Dr Darshn’s contentions (see [19] above).

The First Contention

124    Dr Darshn’s First Contention may be summarised as follows: by giving Avant written notice of Ms M’s Complaint (on 28 June 2017), Dr Darshn gave Avant written notice of a “claim” within the meaning of the applicable Avant policy (that is, the 2016-17 policy), being a claim which continues to be advanced by the lead plaintiffs in the TCI Proceeding on Ms M’s behalf; this notification entitles him to indemnity in relation to the TCI Proceeding (including payment of his legal defence costs) under the 2016-17 policy.

125    As noted above, although the 2016-17 Avant policy is not in evidence, the case was conducted on both sides on the basis that there was no material difference between the terms of that policy and those of the 2017-18 and 2018-19 policies. (The policy in the Court Book at Part B tab 61 (exhibit R1), which was referred to in argument as the “2017 policy”, indicates on the last page that it is version 5.1 of “July 2017”. I therefore take this to be the 2017-18 policy not the 2016-17 policy.) In light of these matters, I will proceed on the basis that the terms of the 2016-17 policy are the same as those in the 2018-19 policy, as set out above.

126    Dr Darshn submits that: no part of the policy definition of “claim” (see [40] above) attaches the concept to the proceeding in which the claim is brought; rather, the only requirement is that the demand for compensation or damages be “in relation to healthcare”. Moreover, Dr Darshn submits, the “claim” advanced by Ms M in her complaint exists independently of the complaint process, and is the same claim as that advanced on her behalf by the representative plaintiffs in the TCI Proceeding.

127    Dr Darshn further submits that:

(a)    The policy defines a “claim” to mean a “demand for compensation or damages in relation to healthcare … first made against you during the policy period … [which you] tell [Avant] about in writing during the policy period” (emphasis added). The relief sought by Ms M in her HCCC complaint during the 2016-17 policy period was “surgery to correct the issues [allegedly arising from her BAS performed by Dr Darshn] with no charge”. Adopting a commercial and businesslike approach to policy construction (Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at [35]), it would be unduly narrow to suggest that this did not comprise a demand for “compensation or damages”, particularly in circumstances in which TCI had previously offered to perform such surgery for $3,000 and where such relief would undoubtedly have resulted in an outlay of costs by Avant, TCI and/or Dr Darshn if Ms M’s Complaint were successful. If there were scope for doubt about whether Ms M’s preferred remedy constitutes a “claim” under the policy, any ambiguity of construction as to the definition of “claim” should be resolved in Dr Darshn’s favour: Icon Co (NSW) Pty Ltd v Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets [2020] FCA 1493 at [53]-[61], [88]-[89]; Quintis Ltd (Subject to Deed of Company Arrangement) v Certain Underwriters at Lloyd’s London Subscribing to Policy Number B0507N16FA15350 [2021] FCA 19 at [65].

(b)    While Ms M’s Complaint was dismissed by the HCCC in November 2017, this did not extinguish her “claim” in the sense in which the term is used in Pt 10 of the Civil Procedure Act; nor indeed her “claim” as defined in the policy. No statutory estoppel or res judicata arose from the decision of the HCCC and no releases were given by Dr Darshn in Ms M’s favour. For the purposes of Pt 10 of the Civil Procedure Act, a “claim” consists of “the facts which give rise to the action and the legal basis of the action” rather than “the cause of action or remedy sought in the action”: Dyczynski v Gibson (2020) 381 ALR 1 (Dyczynski) at [167] (in relation to the equivalent provisions of Pt IVA of the Federal Court of Australia Act 1976 (Cth)). By operation of ss 157 and 158 of the Civil Procedure Act, Ms Sanchez (the “Darshn Sub-Group” representative in the TCI Proceeding) has, since June 2020, had standing to advance Ms M’s “claim” (in the Pt 10 sense) and, it follows, Ms M’s claim first made under the 2016-17 policy. Once Ms Sanchez commenced her action on her own behalf and in her representative capacity, Ms M’s claim (i.e. her demand for compensation or damages in relation to healthcare first made in the policy period) was revived.

128    Avant’s submissions in response can be summarised as follows:

(a)    Contrary to Dr Darshn’s submissions, the notification by Dr Darshn to Avant of Ms M’s Complaint on 28 June 2017 does not amount to the notification of a “claim” under Pt A of the 2016-17 policy.

(b)    There is a distinction between a “claim” under Pt 10 of the Civil Procedure Act and a “claim” as defined in the 2016-17 Avant policy: see Dyczynski at [325]-[343]. An individual who is a group member may never bring a “claim” (as defined in the policy) despite not opting out, and despite having the benefit of the statutory estoppel created by the determination of the common issues. True it is that there are mechanisms for other issues in controversy in individual claims to be determined using the machinery in ss 168-170 of the Civil Procedure Act, but when properly considered and applied to a case such as the present there would be a multitude of issues unique to each patient; for example, reliance, causation in fact, and damages, particularly where some kind of mental harm is alleged.

(c)    Contrary to Dr Darshn’s submissions, no notion of “revival” arises. The determination of Ms M’s Complaint by the HCCC did not determine any civil action which Ms M might choose to take. There was never any “claim” by Ms M.

(d)    Contrary to Dr Darshn’s submissions, the character of Ms M’s “claim” as that term is applied in Pt 10 of the Civil Procedure Act is not a complete cause of action that would give rise to a “civil liability” and an order to pay damages or compensation: see Dyczynski at [166]-[170].

(e)    Indeed, the only “claim” within the definitions to any of the Avant policies is the claim made by Ms Sanchez as the representative of the subgroup of Dr Darshn patients. That “claim” was not made until the filing and service of the amended TCI claim, which was after Avant came off risk on 30 June 2019.

129    In my view, Ms M’s Complaint to the HCCC (made on or about 2 May 2017), in respect of which Dr Darshn gave written notice to Avant on 28 June 2017, constituted a “claim” within the meaning of the 2016-17 Avant policy. The meaning of “claim” depends on the proper construction of the policy: McCarthy v St Paul International Insurance Co Ltd (2007) 157 FCR 402 at [74]-[75] per Allsop J (as his Honour then was). The definition of “claim” has been set out above, but for ease of reference I set it out again:

A demand for compensation or damages in relation to healthcare which:

a)    is first made against you during the policy period; and

b)    you tell us about in writing during the policy period.

130    Ms M’s Complaint has been set out at [48] above. For present purposes, the critical part of the complaint is the following:

As a result of my complaint I want:

This surgery to correct the issues with no charge, or at the very least half the cost their quoting me [i.e. half of $3,000]. After the revision surgery this should have been resolved but it hasn’t.

(Errors in original.)

131    Did Ms M make a “demand for compensation or damages”? In my view she did not make a demand for “damages”, therefore that word can be put to one side. I will focus on whether there was a “demand for compensation”. The words “demand” and “compensation” are not defined in the policy and take their ordinary meaning. In the present context, I consider the ordinary meaning of a “demand” to be a “peremptory request or claim” (see the Oxford English Dictionary (online edition), “demand”, meaning 1(a)). Further, in the present context, I consider the ordinary meaning of “compensation” to be “something given or received as an equivalent for services, debt, loss, suffering, etc.” (see the Macquarie Dictionary (online edition), “compensation”, meaning 2). In my view, Ms M’s Complaint constituted a “demand for compensation”. It was a “demand” in the sense of a peremptory request or claim. Further, it was a demand for “compensation”, in the sense that it was a demand for something (services free of charge or at half price) as an equivalent for the loss and suffering alleged in the complaint. Although Ms M was not seeking monetary compensation, she was nevertheless seeking a form of compensation. One way of putting it is that she was seeking compensation in kind.

132    I note for completeness that, in construing the words “demand” and “compensation” in the definition of “claim”, I have had regard to the context of the policy as a whole, including the structure of coverage under Parts A, B and C. Part B of the policy deals with disciplinary and other matters and includes cover in respect of a “complaint”, a defined expression, in certain circumstances. (“Complaint” is defined as “[a]n allegation of unlawful or actionable conduct, misconduct, unsatisfactory conduct or inappropriate practice”.) I do not consider that the structure of the policy and the separate coverage for “complaints” suggests a different construction of the words “demand” and “compensation” (and thus “claim”) from that discussed above. It is consistent with the commercial purpose of the policy that a particular demand may constitute both a “claim”, to which Part A responds, and a “complaint”, to which Part B responds.

133    The other requirement of the definition of “claim” is that it be a demand that “you [the insured] tell us [Avant] about in writing during the policy period”. Here, there is no issue that Dr Darshn notified Avant in writing of Ms M’s Complaint on 28 June 2017, that is, during the 2016-17 policy period.

134    The next issue is whether the “claim” identified above (that is, Ms M’s Complaint to the HCCC in May 2017, in respect of which Dr Darshn gave written notice to Avant on 28 June 2017) is being advanced on her behalf by Ms Sanchez in the TCI Proceeding.

135    It is convenient to note at this point there is an issue between the parties as to whether any “demand for compensation or damages” (being an element of the definition of “claim” in the Avant policies) is being advanced by or on behalf of non-party group members in the TCI Proceeding. (The reason why I have framed this issue in terms of whether any “demand for compensation or damages” is being advanced, rather than whether any “claim” is being advanced, is because the definition of “claim” incorporates as an element that the insured gave the insurer notice in writing during the policy period.) Avant accepts that Ms Sanchez (one of the named plaintiffs) has made a “demand for compensation or damages” but says that the other members of the Darshn Sub-Group (who are not parties) have not. Avant’s contention is that, unless and until a non-party group member in a representative proceeding takes a step such as registering a claim or providing details of their personal loss or damage, the non-party group member has not made a “demand for compensation or damages” within the meaning of the policies. Avant emphasises that the meaning of “claim” in the policies is not necessarily the same as its meaning for the purposes of Pt 10 of the Civil Procedure Act. Dr Darshn’s contention, on the other hand, is that a “demand for compensation or damages” is made by or on behalf of each non-party group member, irrespective of whether they have taken a step such as registering a claim or providing details or their personal loss or damage.

136    Some assistance in relation to this issue is provided by Bank of Queensland Ltd v AIG Australia Ltd [2019] NSWCA 190 (Bank of Queensland). In that case, all members of the Court of Appeal of New South Wales accepted that the completion of class member registration forms (in relation to a representative proceeding in the Federal Court) constituted a “written demand” by each of the persons who completed those forms for the purposes of the definition of “claim” in the policy in that case: see at [7] per Bathurst CJ, at [68] per Macfarlan JA, at [115] per White JA. However, it was not necessary for the Court to consider what the position would be if such registration forms had not been completed. Further, the decision related to the terms of the policy that was before the Court in that case. Similarly, in Morgan, in the matter of Brighton Hall Securities Pty Ltd (in liq) [2013] FCA 970, McKerracher J accepted (at [76]) that, in circumstances where ASIC had provided particulars of each individual claim of each individual group member claimant (in a representative proceeding), including particulars of the amount claimed, this was sufficient to constitute a written demand by each group member for compensation or damages within the meaning of the insurance policy. However, as in Bank of Queensland, it was not necessary to consider what the position would be if such particulars had not been provided, and the judgment related to the particular policy that was before the Court. Thus, I do not consider either of these cases to be conclusive on the issue – they primarily concern what steps are sufficient to constitute a demand, rather than what is necessary to constitute a demand.

137    Ultimately, I do not consider it necessary to determine (for the purposes of the First Contention) whether non-party group members within the Darshn Sub-Group, other than Ms M, have made a “demand for compensation or damages” within the meaning of the Avant policies at this stage of the TCI Proceeding.

138    In relation to Ms M, although I have found that Ms M’s Complaint, as notified in writing by Dr Darshn to Avant, constituted a “claim” as defined in the 2016-17 Avant policy, I am not persuaded that that same claim is being advanced on Ms M’s behalf in the TCI Proceeding. There was a lengthy hiatus between the HCCC’s resolution of Ms M’s Complaint (in November 2017) and Dr Darshn’s joinder as a defendant to the TCI Proceeding (in June 2020). In the complaint to the HCCC, Ms M sought to have corrective surgery performed at no charge; in the TCI Proceeding, Ms Sanchez claims damages on behalf of the members of the Darshn Sub-Group (including Ms M). In the complaint, Ms M focussed on the outcome of the BAS with no substantive allegations of negligence; in the TCI Proceeding, detailed allegations of negligence are advanced.

139    Accordingly, I conclude that Ms M’s “claim” (that is, Ms M’s Complaint as notified in writing by Dr Darshn to Avant) is not being advanced on her behalf in the TCI Proceeding.

140    I note for completeness that, even if I had found that that “claim” was being advanced on Ms M’s behalf in the TCI Proceeding, I would not have been satisfied that this entitled Dr Darshn to coverage for his legal defence costs in defending the TCI Proceeding generally. The legal defence costs that Dr Darshn has incurred, and is incurring, in relation to the TCI Proceeding are referable to Ms Sanchez’s claim and, possibly, the claims brought by Ms Sanchez on behalf of other members of the Darshn Sub-Group generally. In these circumstances, at this stage of the proceeding at least, the legal defence costs are not sufficiently referable to any claim being advanced on behalf of Ms M.

141    For these reasons, I reject the First Contention.

The Second Contention

142    Dr Darshn’s Second Contention can be summarised as follows: by the communications between MDL and Avant, Dr Darshn (by his agent, MDL) notified Avant in writing of facts which might give rise to claims against him in the TCI Proceeding such that s 40(3) of the Insurance Contracts Act operates to prevent Avant from denying liability under the 2017-18 and/or 2018-19 Avant policies.

143    Section 40(3) of the Insurance Contracts Act is relevant to a number of Dr Darshn’s contentions in this proceeding. Although the focus is on s 40(3), it is convenient to set out the section in full:

40    Certain contracts of liability insurance

(1)    This section applies in relation to a contract of liability insurance the effect of which is that the insurer’s liability is excluded or limited by reason that notice of a claim against the insured in respect of a loss suffered by some other person is not given to the insurer before the expiration of the period of the insurance cover provided by the contract.

(2)    The insurer shall, before the contract is entered into:

(a)    clearly inform the insured in writing of the effect of subsection (3); and

(b)    if the contract does not provide insurance cover in relation to events that occurred before the contract was entered into, clearly inform the insured in writing that the contract does not provide such cover.

Penalty: 300 penalty units.

(3)    Where the insured gave notice in writing to the insurer of facts that might give rise to a claim against the insured as soon as was reasonably practicable after the insured became aware of those facts but before the insurance cover provided by the contract expired, the insurer is not relieved of liability under the contract in respect of the claim, when made, by reason only that it was made after the expiration of the period of the insurance cover provided by the contract.

144    It is convenient to refer to some general principles applicable to s 40(3) before turning to the parties’ submissions in relation to Dr Darshn’s Second Contention.

145    In Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 (Newcastle), in the context of s 40 of the Insurance Contracts Act, Brennan CJ stated (at 93):

The Act alters the balance of interests to ensure a fair operation of the relationships between insurers, insureds and other members of the public. It does so chiefly by statutory modification of contractual relations.

146    In the same case, Toohey, Gaudron and Gummow JJ at 99-100 explained the background to s 40 by reference to the explanatory memorandum to the Insurance Contracts Bill 1984 (Cth) and the Australian Law Reform Commission (ALRC) report, Insurance Contracts (Report No 20, 1982). Their Honours stated (at 102-103) that certain expressions used in s 40(1) were “not to be construed narrowly or with undue technicality”, and that s 40(2) casts an obligation upon the insurer “in aid of remedial measures passed for the protection of those dealing with insurers”.

147    In Antico v CE Heath Casualty & General Insurance Ltd (1996) 38 NSWLR 681 (Antico (NSWCA)), an insured sought indemnity under a directors’ and officers’ legal expense policy in respect of legal expenses he incurred in defending legal proceedings brought against him as a director. The cross-appeal raised an issue concerning s 40(3) of the Insurance Contracts Act. In relation to that part of the case, a majority (Priestley and Powell JJA, Kirby P dissenting) held that the cross-appeal should be dismissed (see at 712 per Priestley JA and Powell JA, at 710 per Kirby P). The majority affirmed the reasoning of Giles CJ Comm D at first instance for concluding that a letter of 5 September 1990 to CE Heath Casualty and General Insurance Ltd (CE Heath) enclosing a number of documents including a letter of 29 June 1990 was not a sufficient notification to CE Heath for the purposes of s 40(3). In the judgment at first instance, in connection with this issue, Giles CJ Comm D stated that, in his view, “more was required than the incidental conveying of information” by the inclusion of the letter of 29 June 1990 in the documents provided to CE Heath in connection with proposals for other insurance: see Antico v CE Heath Casualty Insurance Ltd (1995) 8 ANZ Ins Cases ¶61-268 (Antico (first instance)) at 76,004. That statement may be taken to have been approved by the majority in the Court of Appeal.

148    Although Kirby P was in dissent on the cross-appeal in Antico (NSWCA), this reflected a difference as to the application of the legislation to the facts of the case, rather than a difference of principle. In the course of Kirby P’s judgment, he stated at (at 698):

Intention, whether determined on a subjective or objective basis, is not a requirement of s 40(3) of the Act. The words of the section do not indicate the existence of any such condition. The section reads: “where the insured gave notice ....” It does not say, as it might have if the legislature had so intended, “where the insured, specifically and intentionally, gave notice”. In Travelers Indemnity Co v Booker 657 F Supp 280 (1987) at 287 (United States District Court, District of Columbia), Green J said that:

“... intent is irrelevant to the question of whether the firm gave adequate notice of its claims – just as intent to notify does not compensate for the deficiencies of inadequate notice, a lack of intent would not violate otherwise valid notice.”

I agree with that statement. Such an opinion is also harmonious with the general policy behind the Act. A requirement that an insured demonstrate an intention to rely on s 40(3) of the Act, for example, would increase both the complexities faced by insured parties, and the number of costly legal disputes. The Court should avoid such a gloss.

149    The majority did not (expressly or implicitly) differ from Kirby P in relation to the above statement of principle. I do not consider the above statement of principle to be affected by Kirby P’s dissent in the case. In my view, the above statement accords with the text, context and purpose of s 40(3).

150    In Esined No 9 Pty Limited v Moylan Retirement Solutions Pty Ltd (No 2) (2020) 353 FLR 1 (Esined), Slattery J stated at [534]:

For s 40(3) to operate to extend time to notify a claim, there must be a recognisable correspondence between “facts that might give rise to a claim” given in writing to the insurer within the insurance period and “the claim, when made”.

151    His Honour referred at [539] to the importance of the focus within s 40(3) upon notification of “facts that might give rise to a claim” and that merely to identify circumstances in vague terms is quite insufficient.

152    Dr Darshn’s submissions in relation to his second contention can be summarised as follows:

(a)    MDL acted for both Dr Darshn and Avant in relation to the Scotford Proceeding and the Summers-Hall Proceeding. From March 2018 to May 2019 (while Dr Darshn was covered by Avant), MDL regularly communicated with both Avant and Dr Darshn concerning the Scotford Proceeding and (from March 2019) the Summers-Hall Proceeding.

(b)    By those communications, MDL gave notice in writing to Avant of facts giving rise to the possibility that Dr Darshn would be joined as a defendant to the TCI Proceeding and exposed to group member claims.

(c)    The MDL communications were more than a mere “incidental conveying of information” (see Antico (NSWCA) at 691, 712) or a generic notification (cf Esined at [521]-[522], [534]-[539], [554]). They were notifications given to Avant in its capacity as Dr Darshn’s insurer in respect of a particular insurance policy he held with them (Antico (NSWCA) at 699). There is a “recognisable correspondence” between the notifications given by MDL (most prominently of Dr Darshn’s possible exposure to the claims of group members described in the TCI Proceeding statement of claim) and the claims later made against Dr Darshn in that proceeding (by the group members so identified).

(d)    It is not in dispute that Dr Darshn and MDL were in a solicitor/client relationship; nor can it be disputed that therefore a fiduciary relationship arose in which MDL was authorised to act on behalf of Dr Darshn, including to affect his legal relations with third parties: Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) (2008) 39 WAR 1 at [6177]-[6185]; Westpac Banking Corporation v Bell Group (in liq) (No 3) (2012) 44 WAR 1 at [2217]-[2225]. In particular, MDL was appointed to “act on [Dr Darshn’s] behalf” and was recognised by Avant to be acting in that capacity. Avant was in turn accustomed to receiving notifications from MDL as to matters affecting Dr Darshn, including his instructions on factual matters. MDL was thus Dr Darshn’s agent and Avant recognised MDL’s authority to convey information on his behalf.

(e)    The fact that MDL may have given such notifications in its capacity as solicitor for both Avant and Dr Darshn does not negate MDL’s role as Dr Darshn’s agent and representative for the purposes of s 40(3). Moreover, MDL’s intention in notifying the relevant facts is not relevant to the question of whether proper notice as contemplated by s 40(3) has been provided: Antico (NSWCA) at 698-699, 712. MDL gave Avant notice, while it was on risk, of a specified risk concerning a named insured (Ms Scotford) arising from clearly identified facts and circumstances. The identity of the potential group members to whose claims Dr Darshn might be exposed was sufficiently described in the TCI Proceeding statement of claim in accordance with the requirements of s 161 of the Civil Procedure Act: see Ethicon Sàrl v Gill (2018) 264 FCR 394 at [24]-[25]; Dillon v RBS Group (Australia) Pty Ltd (2017) 252 FCR 150 at [50].

(f)    The very risk notified is the one that later emerged and for which the insured now seeks cover. This is the precise scenario in which s 40(3) was intended to operate.

153    Avant’s submissions in response can be summarised as follows:

(a)    The retainer of MDL was limited to each of the matters in respect of which MDL were retained by Avant to act on behalf of Dr Darshn. MDL was not retained to act generally for Dr Darshn. Each of the two retainers were in relation to separate “claims”: those of Ms Scotford and of Ms Summers-Hall.

(b)    The correspondence passing between MDL and Avant in respect of each of the two retainers could not act as some omnibus notice by Dr Darshn of facts that might give rise to a claim for the purposes of s 40(3). The notice cannot be incidental: Antico (NSWCA) at 690-691, 698-699, 712.

(c)    Section 40(3) could not be, and was not, engaged in circumstances where claims had in fact been made against Dr Darshn by Ms Scotford and Ms Summers-Hall. The section simply had no work to do. The only claims that could be the subject of an earlier notification of facts (for the purposes of s 40(3)) were facts comprised in the claims in fact made by each of Ms Scotford and Ms Summers-Hall by the commencement and service of their respective statements of claim.

(d)    The mention of a possible amendment of the TCI Proceeding to join Dr Darshn is not to the point; it would be the same claim so far as Ms Scotford was concerned. Her proceeding would be stayed until the group proceeding ran its course, thus illustrating the operation of ss 168-170 of the Civil Procedure Act.

154    I will first consider whether MDL’s communications to Avant gave notice in writing to the insurer of “facts that might give rise to a claim”, within the meaning of s 40(3). I will then consider whether any such notice was given by the insured, as required by s 40(3). The latter issue requires a consideration of whether, in making the communications, MDL were acting on Dr Darshn’s behalf.

155    As indicated above, the first issue is whether MDL’s communications to Avant “gave notice in writing to the insurer of facts that might give rise to a claim against the insured” within the meaning of s 40(3). The key communications made by MDL to Avant have been described in the “Factual findings” section of these reasons: see [67]-[74] and [105]-[107] above. I note in particular the following aspects of the MDL correspondence:

(a)    On 4 February 2019, MDL sent an email to Avant that referred in some detail to the TCI Proceeding and provided a copy of the judgment of Garling J in that proceeding dated 4 December 2018. The email from YPOL that was forwarded to Avant identified that Ms Scotford was presently a member of the class in the TCI Proceeding and that there was a substantial overlap between the TCI Proceeding and the Scotford Proceeding.

(b)    The attached judgment of Garling J provided a summary of the TCI Proceeding, including the nature of the proceeding, the parties, the causes of action and the common questions.

(c)    On 7 February 2019, MDL sent an email to Avant that referred to the possibility of Dr Darshn being joined to the class action if Ms Scotford decided to discontinue the Scotford Proceeding.

(d)    The email also referred to the similarity of issues in dispute as between the TCI Proceeding and the Scotford Proceeding.

(e)    On 22 May 2019, MDL sent an email to Avant that stated that the TCI entities that were defendants to the TCI Proceeding had been denied indemnity by their insurers and were in liquidation. The email also stated that the liquidators of the TCI entities had advised that they did not have the funds to satisfy any judgment that may be awarded against the TCI entities in the TCI Proceeding.

156    As set out above, the correspondence from MDL to Avant described the nature of the TCI Proceeding and the causes of action and common questions in that proceeding. It was clearly apparent that many of the causes of action were open to being deployed against the TCI surgeons (such as Dr Darshn) as well as the TCI entities. It was also apparent that, in circumstances where the TCI entities had been denied cover by their insurers and were in liquidation, and the liquidators had said they did not have sufficient funds to satisfy any judgment against them, it was possible, if not likely, that the surgeons who had practised at TCI clinics and performed the relevant BAS would be joined as defendants to the TCI Proceeding.

157    In my view, the MDL correspondence, viewed collectively, gave notice in writing to Avant of facts that might give rise to a claim against Dr Darshn, namely potential claims by the plaintiffs and group members in the class action upon whom Dr Darshn had performed BAS, with the claims being substantially similar to the claims already made in the TCI Proceeding. While the correspondence was sent to Avant in connection with the Scotford Proceeding and, in the case of the last email, the Summers-Hall Proceeding, the interaction between those proceedings and the TCI Proceeding and the nature and scope of the TCI Proceeding featured prominently in the correspondence. Moreover, the facts set out in the correspondence conveyed the possibility, if not the likelihood, that the TCI surgeons would be joined as defendants to the TCI Proceeding. This is not a case where the communications merely incidentally conveyed the relevant information: cf Antico (first instance) at 76,004. Here, the relevant information was the central focus of the communications.

158    To the extent that the relevant facts were conveyed in several communications, I do not consider it necessary for the purposes of s 40(3) that notice be given in a single document. Further, as discussed above, it is not necessary that the giver of the notice have an intention to give notice of facts that might give rise to a claim under s 40(3).

159    There is, here, a “recognisable correspondence” (cf Esined at [534]) between the “facts that might give rise to a claim” and the “the claim, when made”. The MDL correspondence set out facts that might give rise to a claim, namely potential claims by the plaintiffs and group members in the TCI Proceeding upon whom Dr Darshn had performed BAS, with the claims being substantially similar to the existing claims in that proceeding. The claim, when made, was brought by Ms Sanchez against Dr Darshn in the TCI Proceeding and was substantially similar to the claims already made in the proceeding.

160    For these reasons, I consider that MDL’s correspondence “gave notice in writing to the insurer of facts that might give rise to a claim against the insured” within the meaning of s 40(3).

161    I now turn to address whether the notice in writing was given by the insured, as required by s 40(3). As indicated above, this requires a consideration of whether, in making the communications, MDL were acting on Dr Darshn’s behalf. It seems plain to me that the requirement of s 40(3) that the insured give the notice in writing may be satisfied by another person, an agent, doing so on the insured’s behalf. The question is whether, on the facts of the present case, in making the relevant communications, MDL was acting on Dr Darshn’s behalf, such that it can be said that the communications were made by the insured for the purposes of s 40(3).

162    Although the issue arises in the context of s 40(3), it is helpful to have regard to general principles of agency – in particular, those concerned with implied actual authority – in answering the question. In Dal Pont, GE, Law of Agency (LexisNexis Butterworths, 3rd ed, 2014), implied actual authority is described in the following way at [8.2]:

Implied authority is commonly subdivided into three classes: incidental authority, usual authority and customary authority. ‘Incidental authority’ is said to encompass the authority necessarily or normally incidental to the terms of the express authority. It therefore involves a process of construction, namely an inquiry into whether the terms of the agency necessarily confer upon the agent the implied authority to do the act in question. This is contrasted with ‘usual authority’, which is the type of authority that a person in the position or status of the agent in question would usually have. ‘Customary authority’ is sourced from the market in which the agent operates on the principal’s behalf; the agent has implied authority to act according to the usages and customs of that market. Yet it must be understood that the distinction between these classes is inexact.

(Footnotes omitted.)

163    A further form of implied actual authority is referred to in the same text at [8.3]:

It is also possible that a course of dealing between principal and agent may extend the agent’s authority. This is also a form of implied authority, although it does not necessarily fit comfortably in the threefold classification noted above.

(Footnotes omitted.)

164    The implied actual authority of lawyers is specifically discussed at [8.25]-[8.31]. It is stated at [8.25]:

The terms of the retainer agreement usually dictate, in general terms, the scope of the lawyer’s representation and this will, in turn, determine the scope of the lawyer’s authority as an agent of the client. Within the confines of the retainer, the agency relationship between lawyer and client carries with it the implied authority to do all such things incidental to the object of the representation. Hence, so far as implied authority is concerned, the task is to determine whether, given the object(s) of the representation, it could reasonably be said that the lawyer had authority to engage in the conduct in question without prior consultation and consent from the client.

(Footnotes omitted.)

165    These principles offer a guide for the purposes of considering whether, in making the relevant communications, MDL was acting on Dr Darshn’s behalf.

166    In the “Factual findings” section of these reasons, I have set out the communications that were in evidence regarding the retainers of MDL in relation to the Scotford Proceeding and the Summers-Hall Proceeding. In relation to the Scotford Proceeding, the letter from Avant to Dr Darshn (see [59] above) stated that Avant had “instructed [MDL] to act on your behalf in this matter”. It also stated that Avant “will conduct the claim on your behalf” and that “Avant is responsible for the management of the claim”. Further, the email from MDL to Dr Darshn (see [60] above) stated that MDL had been appointed by Avant “to represent you in … these proceedings”. In relation to the Summers-Hall Proceeding, the letter from Avant to Dr Darshn (see [103] above) was relevantly in substantially the same terms as the letter relating to the Scotford Proceeding.

167    It is also relevant to have regard to some of the terms of the Avant insurance policies, which provide part of the context for the retainers of MDL in relation to the Scotford and Summers-Hall Proceedings. The relevant policy terms are set out in [46] above. I note the following:

(a)    Under the heading “Conduct of claims or requests for indemnity”, it is stated: “You [the insured] agree that we [the insurer] have the conduct of a claim … covered under this policy including its … defence”.

(b)    Under the heading “We will appoint the lawyer or other person”, it is stated:

We [the insurer] will appoint the lawyer or other person to provide services to us for the benefit of you [the insured]. When we appoint the lawyer or other person, we do so in our own capacity and not as an agent for you.

The lawyer or other person appointed by us supplies services to us [the insurer] and not to you [the insured] for the purposes of the Goods and Services Tax (GST). We are entitled to claim a GST input tax credit on services supplied by the lawyer or other person.

I note that, although the above term states that the “lawyer … supplies services to us [the insurer] and not to you [the insured]” for GST purposes, it does not say that the lawyer supplies services to the insurer and not the insured for all purposes. Indeed, that would be inconsistent with MDL acting on Dr Darshn’s behalf in relation to the Scotford and Summers-Hall Proceedings.

(c)    Under the heading “We do not accept responsibility for the lawyer or other person”, it is stated:

We [the insurer] do not accept any responsibility for anything done or not done by the lawyer or other person. He or she is not our agent or employee. We make no representation of any kind about the lawyer’s or other person’s ability.

(d)    Under the heading “You must cooperate”, it is stated:

You [the insured] further agree to waive any claim for legal professional privilege or confidentiality to the extent only that the privilege or confidentiality would otherwise prevent the lawyer from disclosing information to us [the insurer]. The lawyer will keep us properly informed on all relevant matters.

168    Having regard to the above, I find that the firm, MDL, was engaged to act as the solicitors for Dr Darshn in relation to the Scotford Proceeding and the Summers-Hall Proceeding. The retainer established an agency relationship as between Dr Darshn and MDL. The existence of a lawyer-client relationship between MDL and Dr Darshn is underlined by the following term of the policy: “You [the insured] further agree to waive any claim for legal professional privilege or confidentiality to the extent only that the privilege or confidentiality would otherwise prevent the lawyer from disclosing information to us [the insurer].” The scope of MDL’s retainer extended to doing all things necessary for, or incidental to, the conduct of the proceeding on Dr Darshn’s behalf. Further, pursuant to the provisions of the policy, Dr Darshn agreed that Avant would have the “conduct” of the proceeding (that is, it would be responsible for making decisions as to the conduct of the litigation) and that MDL would keep Avant properly informed on all relevant matters. By virtue of those arrangements, there was also a lawyer-client relationship between MDL and Avant, and MDL provided advice (as well as information) to Avant in relation to the conduct of the proceedings.

169    In the circumstances, I would characterise the relevant communications as having been sent by MDL on Dr Darshn’s behalf. MDL was the firm of solicitors acting for Dr Darshn in relation to the Scotford Proceeding and the Summers-Hall Proceeding. The sending of the communications was within the scope of MDL’s authority to act on Dr Darshn’s behalf in relation to the proceedings because the communications related to those proceedings and were sent in the course of MDL’s retainer as the solicitors acting for Dr Darshn in the proceedings. The communications were necessary for, or at least incidental to, MDL’s retainer to act on Dr Darshn’s behalf in connection with the proceedings. It is true that there was also a lawyer-client relationship between MDL and Avant, and the communications could be characterised as the provision of information or advice to Avant for the purposes of its management of the proceedings. While the communications may have that character, I would nevertheless characterise them as having been sent on Dr Darshn’s behalf for the purposes of s 40(3), for the reasons given above.

170    Accordingly, in my view, in making the relevant communications, MDL was acting on Dr Darshn’s behalf. I therefore conclude that the notice in writing was given by the insured as required by s 40(3).

171    There does not appear to be any issue regarding the requirement of s 40(3) that the notice be given “as soon as was reasonably practicable after the insured became aware of [the relevant] facts”. In any event, I find that this requirement is satisfied, on the basis that MDL’s knowledge of the relevant facts is to be treated as Dr Darshn’s knowledge, and the facts were notified as soon as reasonably practicable after Dr Darshn (through MDL) became aware of them.

172    For the above reasons, I conclude that s 40(3) operates in the present case, with the effect that the insurer (Avant) is not relieved of liability under the 2018-19 Avant policy in respect of Ms Sanchez’s claim against Dr Darshn in the TCI Proceeding, by reason only that it was made after the expiration of the period of insurance cover provided by the policy.

173    It follows from the above that Dr Darshn is entitled to cover under the 2018-19 Avant policy in respect of Ms Sanchez’s claim in the TCI Proceeding, and the legal defence costs associated with defending her claim in the proceeding (which, at the present time at least, equates to his legal defence costs associated with defending the proceeding generally). Dr Darshn’s Second Contention is, therefore, substantially made out. I do not consider it necessary or appropriate to determine, at this time, whether Dr Darshn will be entitled to coverage under the policy with respect to non-party group members within the Darshn Sub-Group. It is more appropriate, in my view, to determine that question if and when any such group members come forward and indicate that they wish to participate in the proceeding (for example, by providing particulars of their personal loss and damage). It may well be the case that the reasoning set out above regarding Ms Sanchez’s claim would apply equally to the claims of such group members; but that is something that can be determined, if necessary, at the point in time when such group members come forward.

The Third Contention

174    Dr Darshn’s Third Contention can be summarised as follows: by notifying Avant of Ms M’s Complaint, Ms Scotford’s claim and/or Ms Summers-Hall’s claim (by themselves or in conjunction with his oral notification of his receipt of the subpoena in the TCI Proceeding), Dr Darshn provided written notice to Avant of facts that might give rise to a claim against him as soon as was reasonably practicable after he became aware of them; accordingly, s 40(3) of the Insurance Contracts Act operates to prevent Avant from denying liability under one or more of the 2016-17, 2017-18 or 2018-19 Avant policies.

175    Section 40(3) and some general principles relating to the provision have been set out above.

176    Dr Darshn’s submissions can be summarised as follows:

(a)    In relation to Ms M’s Complaint, even if Dr Darshn’s notification of the complaint did not constitute notification of a “claim” within the policy period of the 2016-17 policy, it constituted written notification of “facts that might give rise to a claim” in the form of that brought in the TCI Proceeding. The facts so notified (including the nature of Ms M’s alleged injuries, her identity, the date of her procedures and Dr Darshn’s involvement) were sufficiently connected to the claim made in the TCI Proceeding to entitle Dr Darshn to indemnity under the 2016-17 policy pursuant to s 40(3).

(b)    In relation to Ms Scotford’s claim and Ms Summers-Hall’s claim, Dr Darshn’s notification of these claims included documents detailing the nature of the claims against him. Avant was well aware of the allegations made against TCI in the class action, and may be taken to be aware that those proceedings could well be expanded to include claims against the TCI surgeons. Indeed, it appears that Avant has indemnified a number of other surgeons who are now defendants to the TCI Proceeding based on no more than their written notification of a subpoena in the TCI Proceeding and/or their notification of individual complaints made against them prior to the commencement of the TCI class action.

(c)    In light of the above, viewed objectively, it ought to be found that Dr Darshn gave written notification within s 40(3) by the notifications of Ms M’s Complaint, Ms Scotford’s claim and/or Ms Summers-Hall’s claim.

177    Avant’s submissions in relation to the notification of Ms M’s Complaint can be summarised as follows:

(a)    The notification by Dr Darshn of Ms M’s Complaint was not written notice of facts that might give rise to a claim. Section 40(3) requires that the facts notified be related to a potential claim, not as a mere possibility. The onus is on the insured to bring to the insurer’s attention the facts and the possibility of a claim arising from them. An incidental notification is insufficient: Antico (NSWCA) at 698-699 per Kirby P, 712 per Priestly JA, with whom Powell JA agreed; Antico (first instance).

(b)    There is no notion of constructive notice which applies to s 40(3). It is a beneficial provision that requires the insured to satisfy not only the gateway requirement of notice in writing but also the requirement of notice to the insurer of facts that might give rise to a claim.

(c)    The purpose of s 40(3) is self-evident: it is to permit an insured to notify the insurer of a potential claim by giving notice in writing of the facts and pointing to the claim that might eventuate, not as a mere possibility, but as an effective notice of a potential claim.

(d)    The mere fact of a complaint by a former patient to the HCCC does not as a matter of prospective notice carry with it the real potential of a claim. The making of a complaint might be the only way in which the former patient wishes to ventilate her complaint, without the risk of legal costs that attends the commencement of proceedings.

178    Avant’s submissions in relation to the notification of Ms Scotford’s claim and Ms Summers-Hall’s claim can be summarised as follows.

(a)    A fundamental difficulty for Dr Darshn is that the subsequent claims against him (in the TCI Proceeding) were by different claimants. In June 2020, when Dr Darshn was joined to the TCI Proceeding, Ms Scotford and Ms Summers-Hall were not part of that action against him.

(b)    The “notice in writing” must be of “facts”. The asserted making of a claim on the Avant policies in respect of the Scotford Proceeding and Summers-Hall Proceeding was not notice of anything other than the “claim” made by the former patient in each of those two proceedings. It cannot be said to be a generalised notification of all activities undertaken by Dr Darshn while he was an employee of TCI.

(c)    The “notice in writing” of facts must be relatable to the claim that might be made. On its proper construction this involves a written communication that from particular facts which are notified a claim might be made: see Derrington, DK and Ashton, RS, The Law of Liability Insurance (LexisNexis Butterworths, 3rd ed, 2013) at [8-129], [8-246].

(d)    The use of the word “claim” in the subsection is no accident; it demonstrates a clear legislative intention to incorporate by reference the way in which “claims” are defined as accepted in insurance law and in the commercial practice of insurers.

179    The issue to be determined is whether Dr Darshn’s written notifications of Ms M’s Complaint, Ms Scotford’s claim and Ms Summers-Hall’s claim (whether considered individually or together) constituted the giving of written notice of “facts that might give rise to a claim”, such that Dr Darshn can rely on s 40(3) in respect of the claim made against him by Ms Sanchez in the TCI Proceeding. For present purposes, it is sufficient to focus on the claim by Ms Sanchez against Dr Darshn in the TCI Proceeding. As noted above, it is common ground that this constitutes a “demand for compensation or damages” (part of the definition of “claim”) within the meaning of the Avant policies. There is no relevant distinction for present purposes between Ms Sanchez’s claim and the claims (if they constitute a “demand for compensation or damages” within the meaning of the Avant policies) made by or on behalf of the other members of the Darshn Sub-Group.

180    The high-water mark of Dr Darshn’s contention is the notification in relation to the Scotford Proceeding. I will therefore start by focussing on that notification. It may be accepted that the statement of claim in the Scotford Proceeding (summarised earlier in these reasons) identified a number of systemic issues with Dr Darshn’s surgical practices, most obviously the alleged “one size fits all approach”, that could be relevant to other patients of Dr Darshn. It may thus be argued that the notification of Ms Scotford’s claim (assuming it included the statement of claim) constituted the giving of written notice, not only of her claim, but also of “facts that might give rise to a claim”, namely claims by other patients of Dr Darshn who were the subject of the “one size fits all approach” and suffered loss or damage as a result. While that position is arguable, on balance I do not consider that the notification was sufficient to satisfy the requirements of s 40(3). The notification did not assert that other patients of Dr Darshn had also suffered loss or damage as a result of BAS performed on them. And the notification did not identify, either by name or by description, other potential claimants. To adopt the language used in Esined at [534], there was not a “recognisable correspondence” between the “facts that might give rise to a claim” given in writing to the insurer within the insurance period and “the claim, when made”. In these circumstances, I am not satisfied that the notification of Ms Scotford’s claim gave notice of “facts that might give rise to a claim”, such that Dr Darshn can rely on s 40(3) in respect of the claim made against him by Ms Sanchez in the TCI Proceeding.

181    As I have said, the notification in the Scotford Proceeding is the high-water mark of Dr Darshn’s contention in this regard. For the same reasons, neither the notification of Ms M’s Complaint nor the notification of Ms Summers-Hall’s claim satisfied the requirements of s 40(3). Further, even if the three notifications are taken together, the same reasoning applies.

182    I note that, as part of Avant’s submissions on this contention it is submitted that giving notice of a “mere possibility” is not sufficient for the purposes of s 40(3) and that the notice needs to convey “the real potential of a claim”. It seems to me that these submissions place a gloss on the words of s 40(3) that is not warranted. The text of s 40(3) refers to facts that “might” give rise to a claim, suggesting that notice of a possibility of a claim may be sufficient, subject to satisfaction of the other requirements of the provision. This is not to say that a letter that delivers an overall message that vague claims are just “a potential possibility” will satisfy the section: see Esined at [539].

183    I further note that, in advancing this contention, Dr Darshn relies on the three written notifications “by themselves or in conjunction with his oral notification of his receipt of the subpoena in the TCI Proceeding”. I do not consider that the oral notification of the subpoena overcomes the difficulties with this contention discussed above.

184    For the above reasons, I conclude that Dr Darshn’s written notifications of Ms M’s Complaint, Ms Scotford’s claim and Ms Summers-Hall’s claim (whether considered individually or together) did not constitute the giving of written notice of “facts that might give rise to a claim” enabling him to rely on s 40(3) in respect of the claim made against him by Ms Sanchez in the TCI Proceeding.

The Fourth Contention

185    By his Fourth Contention, Dr Darshn contends that, by notifying Avant orally of the subpoena in the TCI Proceeding:

(a)    Dr Darshn provided notice to Avant of facts that might give rise to a claim against him as soon as was reasonably practicable after he became aware of them for the purposes of s 40(3); and

(b)    in the absence of any prejudice to Avant from Dr Darshn’s failure to provide that notice in writing, s 54 and/or s 14 of the Insurance Contracts Act operate to prevent Avant from relying on the requirement of writing in s 40(3) in order to avoid liability.

186    Section 40 and some general principles relating to that provision have been set out above.

187    It is convenient to now set out s 54 of the Insurance Contracts Act. (Although the above contention also refers to s 14, the submissions in support of the contention focus on s 54. I set out s 14 later in these reasons, in the context of the Fifth Contention.) Section 54 provides as follows:

54    Insurer may not refuse to pay claims in certain circumstances

(1)    Subject to this section, where the effect of a contract of insurance would, but for this section, be that the insurer may refuse to pay a claim, either in whole or in part, by reason of some act of the insured or of some other person, being an act that occurred after the contract was entered into but not being an act in respect of which subsection (2) applies, the insurer may not refuse to pay the claim by reason only of that act but the insurer’s liability in respect of the claim is reduced by the amount that fairly represents the extent to which the insurer’s interests were prejudiced as a result of that act.

(2)    Subject to the succeeding provisions of this section, where the act could reasonably be regarded as being capable of causing or contributing to a loss in respect of which insurance cover is provided by the contract, the insurer may refuse to pay the claim.

(3)    Where the insured proves that no part of the loss that gave rise to the claim was caused by the act, the insurer may not refuse to pay the claim by reason only of the act.

(4)    Where the insured proves that some part of the loss that gave rise to the claim was not caused by the act, the insurer may not refuse to pay the claim, so far as it concerns that part of the loss, by reason only of the act.

(5)    Where:

(a)    the act was necessary to protect the safety of a person or to preserve property; or

(b)    it was not reasonably possible for the insured or other person not to do the act;

the insurer may not refuse to pay the claim by reason only of the act.

(6)    A reference in this section to an act includes a reference to:

(a)    an omission; and

(b)    an act or omission that has the effect of altering the state or condition of the subject-matter of the contract or of allowing the state or condition of that subject-matter to alter.

188    The background to and operation of s 54 was explained in Maxwell v Highway Hauliers Pty Ltd (2014) 252 CLR 590 (Maxwell). After referring to the general objects of the Insurance Contracts Act, Hayne, Crennan, Kiefel, Bell and Gageler JJ stated at [20]-[21]:

20    The more specific objects of s 54 of the Act were explained in the report of the Australian Law Reform Commission which recommended its introduction. Those objects included striking a fair balance between the interests of an insurer and an insured with respect to a contractual term designed to protect the insurer from an increase in risk during the period of insurance cover. That balance was to be struck irrespective of the form of that contractual term. In particular, no difference was to be drawn between a term framed: as an obligation of the insured (eg, “the insured is under an obligation to keep the motor vehicle in a roadworthy condition”); as a continuing warranty of the insured (eg, “the insured warrants he will keep the motor vehicle in a roadworthy condition”); as a temporal exclusion from cover (eg, “this cover will not apply while the motor vehicle is unroadworthy”); or as a limitation on the defined risk (eg, “this contract provides cover for the motor vehicle while it is roadworthy”).

21    Antico v Heath Fielding Australia Pty Ltd established, conformably with those objects, that s 54 takes as its starting point nothing more than the existence of a claim and of a contract the effect of which is that the insurer may refuse to pay that claim by reason of some act which the insured (or someone else) has done or omitted to do after the contract was entered into; it does not postulate a liability of the insurer to pay the claim that has been made. In terms consistent with the reasoning of the majority, Brennan CJ there said that s 54(1):

“focuses not on the legal character of a reason which entitles an insurer to refuse to pay a claim – falling outside a covered risk, coming within an exclusion or non-compliance with a condition – but on the actual conduct of the insured, that is, on some act which the insured does or omits to do … It is engaged when the doing of an act or the making of an omission would excuse the insurer from an obligation to pay a claim for a loss actually suffered by the insured.”

(Footnotes omitted.)

189    In Antico v Heath Fielding Australia Pty Ltd (1997) 188 CLR 652 (Antico (HC)), Dawson, Toohey, Gaudron and Gummow JJ held at 669 that:

Section 54(1) uses the phrase “by reason of some act of the insured or of some other person”. It does not specify the act or omission of the insured as being a failure to discharge an obligation owed by the insured to the insurer. The legislation is expressed in broad terms and, on its face, there is no reason why the omission of the insured may not be a failure to exercise a right, choice or liberty which the insured enjoys under the contract of insurance.

190    Dr Darshn’s submissions in relation to this contention are, in summary, as follows:

(a)    It has been recognised that s 54 applies to policies that provide cover for claims made outside of the policy period where the insured gives notice of facts or circumstances during the policy period. In such cases, the failure to give any such notification has been held to be an “omission” within s 54(6)(a) and relief was available to the insured in accordance with s 54(1): FAI General Insurance Co Ltd v Australian Hospital Care Pty Ltd (2001) 204 CLR 641 at [46]; Guild Insurance Ltd v Hepburn (2015) 18 ANZ Insurance Cases ¶62-046; [2014] NSWCA 400 (Guild) at [51]. The same result ought to follow where, by reason of a statutory expansion of the insurance policy under s 40(3), an insured would be covered if notification had been given during the policy period but the insured omitted to do so.

(b)    The explanatory memorandum to the Insurance Contracts Bill (at paragraphs 126-127) reflected an intention to place an insured relying on s 40(3) in the same position as one whose insurance policy expressly contained such a clause. This is consistent with the comments made by Kirby P in Antico (NSWCA) at 696 that even in cases where the insurance policy has a clause of the kind provided for in s 40(3), to the extent the two differ the statutory version “takes primacy”. Approaching ss 40(3) and 54 in a manner that treats all insureds equally is in accordance with the Insurance Contracts Act’s purpose of striking a fair balance of the interests of the insured and the insurer (Newcastle at 93) and of addressing the “mischief” of insurance contracts that would deny cover because the claim was made outside the policy period despite the events giving rise to the claim occurring within it: Newcastle at 101-102; see also 99-100. It also reflects the fact that s 54 is concerned not with form but with the effect of the contract as a matter of substance: East End Real Estate Pty Ltd v CE Heath Casualty & General Insurance Ltd (1991) 25 NSWLR 400 at 403-404; Prepaid Services Pty Ltd v Atradius Credit Insurance NV (2013) 302 ALR 732 at [130]. That in turn is consistent with its purpose and focus of striking a fair balance between the insured and insurer irrespective of the form of the policy: Maxwell at [20]; ALRC, Insurance Contracts, pp xxxi-xxxii, 132-140.

(c)    Whether a failure by an insured to provide notice in writing in the context of a claim invoking s 40(3) of the Insurance Contracts Act can be cured by s 54 has not been subject to judicial consideration. The closest analogous authority is Gosford City Council v GIO General Ltd (2003) 56 NSWLR 542 (Gosford). A critical point of distinction is that here some notification was given to Avant (albeit orally). Further, the Court in Gosford did not consider whether s 40(3) ought to be implied into the terms of the policy. There is a material difference – as a matter of fairness, risk assessment, and of striking a balance between the interests of the insured and insurer – between a case where an insurer has been given notification of facts or circumstances that may give rise to a claim, albeit not in writing, and one where no notification at all has been given.

(d)    So viewed, there is no principled basis for treating differently the applicability of s 54 depending on whether the term providing coverage (where there has been notification of facts or circumstances during the policy period) is found in the insurance policy itself or in s 40(3). For the purposes of s 54, s 40(3) ought to be regarded as reflecting the “effect of a contract of insurance”, either because s 40(3) implies into the insurance policy a term of that kind (see Ball, ML and Kelly, D St L, Kelly & Ball Principles of Insurance Law (online edition), [14.0020.1]) or because, reading ss 40(1) and 54(1) together, it is only due to “the effect of” the insurance policy that s 40(3) is first enlivened (s 40(1)) and in turn it is similarly the “effect of a contract” that would otherwise entitle the refusal to indemnify (s 54(1)). On either view, the failure to notify in accordance with the terms of s 40(3) (whether at all or in writing) would be an “omission” that may be ameliorated by s 54.

(e)    The oral notification of the subpoena in the TCI Proceeding was notification of “facts that might give rise to a claim” for the purposes of s 40(3), capable of being ameliorated by s 54 to the extent of any failure to comply with s 40(3)’s terms. There being no prejudice to Avant, Dr Darshn is entitled to full indemnity.

191    Avant’s submissions in response can be summarised as follows:

(a)    Section 54 has no role to play at all in the determination of whether or not a failure to notify in writing can be excused. This has been accepted twice by the NSW Court of Appeal: in Gosford at [37] and in Guild at [23].

(b)    The complete absence of notice is fatal to Dr Darshn’s claim under s 40(3) and because it is a distinct and special statutory provision, it should not be read down in the way contended for.

(c)    Section 54 is intended to apply to policies “where the effect of a contract of insurance would, but for this section, be that the insurer may refuse to pay a claim”. That is not this case.

(d)    In order for there to be any coverage Dr Darshn must establish that he gave notice in writing, in other words, that he complied with s 40(3) in order to obtain the advantage that s 40(3) provides, outside of the context of the existing insurance policy. It is an additional provision which is imposed by statute on the insurer where such written notice is given.

192    In my view, the preferable construction of the provisions is that s 40(3) and s 54 stand alone as ameliorative provisions, and their operation cannot be combined in the way that Dr Darshn seeks to do in his submissions.

193    The principles of statutory construction are well established and need not be referred to in detail. It is sufficient to refer to: s 15AA of the Acts Interpretation Act 1901 (Cth); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39]; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 at [25]-[26]; and SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14].

194    Dr Darshn seeks to combine the operation of ss 40(3) and 54 such that, where an insured gives notice to an insurer of “facts that might give rise to a claim against the insured” during the policy period, and would be able to rely on s 40(3) save for the fact that the notice was given orally rather than in writing, the omission to give the notice in writing can be the subject of the ameliorative operation of s 54.

195    The issue is one of construction of s 54, having regard to its text, context and purpose. The text of s 54(1) refers to “the effect of a contract of insurance”; it does not refer to the effect of a contract of insurance taken together with s 40(3) or the provisions of the Act more generally. This tends against the contended-for combined operation of s 40(3) and s 54. Further, there is no indication in the extrinsic materials that s 40(3) and s 54 were intended to be able to have a combined operation. While it is established that s 54 is “remedial in character and its language should be construed so as to give the most complete remedy which is consistent with the actual language employed and to which its words are fairly open” (Antico (HC) at 675 per Dawson, Toohey, Gaudron and Gummow JJ), the language used suggests that its intended operation was upon the “effect of a contract of insurance” rather than upon the effect of a contract of insurance taken together with s 40(3) or the provisions of the Act more generally. Thus, I consider the better view to be that each of s 40(3) and s 54 operates according to its own terms, and that they are not capable of operation in a combined way as contended.

196    The position would be different if s 40(3) had been drafted to deem the contract of insurance to include an implied term (to like effect as the provision). Had that approach been taken, s 54 would be capable of operation in relation to an act or omission relating to the term, as the relevant “effect” would an effect “of a contract of insurance”. However, s 40(3) has not been constructed in that way; it operates of its own force as a statutory modification of the rights and obligations of the insured and the insurer.

197    I accept that this construction means that there may be a different outcome as between: (a) a case where a contract of insurance contains a clause to the same or similar effect as s 40(3); and (b) a case where the contract does not contain such a term and the insured must rely on s 40(3). In the former case, s 54 would be capable of operation in circumstances where, for example, an insured gives an oral (but not written) notification of facts that might give rise to a claim during the policy period; in the latter case, s 54 would not be capable of operation in such circumstances. However, I consider the difference in the outcomes to be a product of the text, and the intended scope of operation, of s 54.

198    The construction that I prefer, as outlined above, is consistent with the judgment of the New South Wales Court of Appeal in Gosford: see at [36]-[37] per Sheller JA, Spigelman CJ and Meagher JA agreeing; see also Guild at [23] per Macfarlan JA, Gleeson JA agreeing. I accept that there is a factual distinction between Gosford and the present case. In Gosford, no notice under s 40(3) was given; in the present case, Dr Darshn contends that he gave notice (albeit oral) of “facts that might give rise to a claim” within the meaning of s 40(3) by giving notice of his receipt of the subpoena in the TCI Proceeding. Further, an argument along the lines of that presented by Dr Darshn in the present case was not advanced or considered in Gosford. Nevertheless, the tenor of the discussion in Gosford is consistent with the construction that I prefer.

199    I note that a contrary view is expressed in one text: see Ball, ML and Kelly, D St L, Kelly & Ball Principles of Insurance Law (online edition), [14.0020.1]. However, for the reasons given above, I consider the preferable construction to be that each of s 40(3) and s 54 operates according to its own terms and their operation cannot be combined in the way contended.

200    It follows that Dr Darshn is unable to make out this contention. There does not appear to be any issue that, if Dr Darshn’s construction argument is rejected, his (oral) notification of the receipt of the subpoena in the TCI Proceeding did not satisfy the requirements of s 40(3) or s 54, considering each provision separately.

201    For these reasons, I conclude that the Fourth Contention is not made out.

The Fifth Contention

202    Dr Darshn’s Fifth Contention relates to the duty of utmost good faith. Dr Darshn contends that Avant acted in breach of its duty of utmost good faith under s 13 of the Insurance Contracts Act because it: acted arbitrarily or unfairly in refusing Dr Darshn’s claim for indemnity, while accepting the claims of other surgeons who notified Avant of the TCI Proceeding claims in relevantly indistinguishable circumstances; and/or failed to advise or inform him during his telephone calls with its Medico-Legal Advice Service that he was required to send it the subpoena in order to be covered for any claim related to the TCI Proceeding.

203    Although the focus of the contention is s 13, I set out ss 12 and 14 as well to provide context. The three sections provide as follows:

12    This Part not to be read down

The effect of this Part is not limited or restricted in any way by any other law, including the subsequent provisions of this Act, but this Part does not have the effect of imposing on an insured, in relation to the disclosure of a matter to the insurer, a duty other than:

(a)    in relation to a consumer insurance contract or proposed consumer insurance contract—the duty to take reasonable care not to make a misrepresentation; or

(b)    in relation to any other contract of insurance or proposed contract of insurance—the duty of disclosure.

13    The duty of the utmost good faith

(1)    A contract of insurance is a contract based on the utmost good faith and there is implied in such a contract a provision requiring each party to it to act towards the other party, in respect of any matter arising under or in relation to it, with the utmost good faith.

(2)    A failure by a party to a contract of insurance to comply with the provision implied in the contract by subsection (1) is a breach of the requirements of this Act.

(2A)    An insurer under a contract of insurance contravenes this subsection if the insurer fails to comply with the provision implied in the contract by subsection (1).

Civil penalty: 5,000 penalty units.

(3)    A reference in this section to a party to a contract of insurance includes a reference to a third party beneficiary under the contract.

(4)    This section applies in relation to a third party beneficiary under a contract of insurance only after the contract is entered into.

14    Parties not to rely on provisions except in the utmost good faith

(1)    If reliance by a party to a contract of insurance on a provision of the contract would be to fail to act with the utmost good faith, the party may not rely on the provision.

(2)    Subsection (1) does not limit the operation of section 13.

(3)    In deciding whether reliance by an insurer on a provision of the contract of insurance would be to fail to act with the utmost good faith, the court shall have regard to any notification of the provision that was given to the insured, whether a notification of a kind mentioned in section 37 or otherwise.

204    The duty of utmost good faith was considered by the High Court in CGU Insurance Ltd v AMP Financial Planning Pty Ltd (2007) 235 CLR 1 (CGU v AMP). In the judgment of Gleeson CJ and Crennan J, their Honours said at [15]-[16]:

15    We accept the wider view of the requirement of utmost good faith adopted by the majority in the Full Court, in preference to the view that absence of good faith is limited to dishonesty. In particular, we accept that utmost good faith may require an insurer to act with due regard to the legitimate interests of an insured, as well as to its own interests. The classic example of an insured’s obligation of utmost good faith is a requirement of full disclosure to an insurer, that is to say, a requirement to pay regard to the legitimate interests of the insurer. Conversely, an insurer’s statutory obligation to act with utmost good faith may require an insurer to act, consistently with commercial standards of decency and fairness, with due regard to the interests of the insured. Such an obligation may well affect the conduct of an insurer in making a timely response to a claim for indemnity.

16    However, the Act does not empower a court to make a finding of liability against an insurer as a punitive sanction for not acting in good faith. If there is found to be a breach of the requirements of s 13 of the Act, there remains the question how that is to form part of some principled process of reasoning leading to a conclusion that the insurer is liable to indemnify the insured under the contract of insurance into which the parties have entered.

(Footnotes omitted; emphasis added.)

205    In the judgment of Callinan and Heydon JJ, it was stated at [257]:

At the outset we should say that we agree with the Chief Justice and Crennan J that a lack of utmost good faith is not to be equated with dishonesty only. The analogy may not be taken too far, but the sort of conduct that might constitute an absence of utmost good faith may have elements in common with an absence of clean hands according to equitable doctrine which requires that a plaintiff seeking relief not himself be guilty of tainted relevant conduct. We have referred to the doctrine of clean hands because, as with another equitable doctrine, that he who seeks equity must do equity, it invokes notions of reciprocity which are of relevance here. That is not to say that conduct falling short of actual impropriety might not constitute an absence of utmost good faith of the kind which the Insurance Act demands. Something less than that might well do so. Utmost good faith will usually require something more than passivity: it will usually require affirmative or positive action on the part of a person owing a duty of it. It is not necessary, however for the purposes of this case, to attempt any comprehensive definition of the duty, or to canvass the ranges of conduct which might fall within, or outside s 13 of the Insurance Act.

(Footnotes omitted; emphasis added.)

206    Justice Kirby, in dissent, was also of the view that want of utmost good faith should not be equated with dishonesty. His Honour stated at [130]-[131], [139] and [176]:

130    No one doubts that the absence of honesty on the part of an insurer (or insured) will, if proved, attract the provisions of s 13 of the Act. However, this does not mean that a want of honesty is a universal feature of a want of the utmost good faith in this context. Moreover, that is not what Owen J said in Kelly [v New Zealand Insurance Co Ltd (1996) 130 FLR 97]. The reference to the “essential element of honesty” was, in fact, derived by his Honour from a New Zealand decision in Vermeulen v SIMU Mutual Insurance Association. However, in his reasons in Kelly, Owen J (with whom Kennedy and Steytler JJ agreed) did not confine the operation of the section so narrowly. Owen J said:

“At common law contracts of insurance are described as contracts uberrimae fidei or contracts of good faith. The precise definition of the term ‘good faith’ depends on the legal context in which it is used. In the context of insurance, Sutton in Insurance Law in Australia says that the phrase ‘it … basically encompasses notions of fairness, reasonableness and community standards of decency and fair dealing’.”

After referring to Vermeulen, Owen J went on to state: “By virtue of s 12 of the Act the duty in s 13 is an over-riding duty which must not be limited or restricted in any way.”

131    To show that he did not restrict the criterion to dishonesty, Owen J concluded in Kelly: “For all of these reasons there was no dishonest, capricious or unreasonable conduct by the respondent.” In my view, the criteria of dishonesty, caprice and unreasonableness more accurately express the ambit of what constitutes a breach of s 13 of the Act.

…

139    … the broad view which the Full Court majority took concerning the operation of s 13 of the Act is one that this Court should endorse. It sets the correct, desirable and lawful standard for the efficient, reasonably prompt, candid and business-like processing of claims for insurance indemnity in this country.

…

176    The principle is that the parties to insurance contracts in Australia, unlike most other contracts known to the law, owe each other, in equal reciprocity, an affirmative duty of the utmost good faith. This is so now by s 13 of the Act. In the context of that section, emphasis must be placed on the word “utmost”. The exhibition of good faith alone is not sufficient. It must be good faith in its utmost quality.

(Footnotes omitted.)

207    In Delor Vue Apartments CTS 39788 v Allianz Australia Insurance Ltd (No 2) (2020) 379 ALR 117 (Delor Vue), Allsop CJ stated at [347]:

It is not appropriate to seek to define the standard within s 13. It is a normative standard involving the considerations referred to in CGU v AMP in the High Court and in the Full Court. Description of elements and circumstances better illuminate the standard involved. The expression of Gleeson CJ and Crennan J of a “commercial standard of decency and fairness” is, for these circumstances, most apt.

208    In Australian Securities and Investments Commission v TAL Life Ltd (No 2) (2021) 389 ALR 128, Allsop CJ stated in relation to the duty of utmost good faith (at [173]):

It is inappropriate to draw conclusions of principle or of rules from other articulated fact situations about a duty of this character. Fact situations should not be converted into rules by a process of extrapolation and abstraction. It is, however, helpful to recognise from articulated fact situations how the standard can be taken to be breached. Fairness, decency and fair dealing are normative standards judged by reference to community expectations. Unfairness or a lack of decent treatment may take many forms. Arbitrary, capricious and unreasonable conduct may well inform a conclusion of unfairness sufficient to fall short of community expectations of fairness and decency. The obligation upon insurers and the content of the duty in any given case is informed, in part, by the important part insurance and insurers play in the life of the commercial community and of the general community. People rely upon it and them for their commercial and personal stability and wellbeing.

209    Dr Darshn’s submissions may be summarised as follows. Dr Darshn submits that, by denying his claim while indemnifying other surgeons in relevantly indistinguishable circumstances, Avant has acted in an arbitrary, capricious and unreasonable manner. Dr Darshn submits that it appears from Avant’s internal records that it has provided indemnity in relation to the TCI Proceeding to:

(a)    at least one TCI surgeon ([Dr 3]) who did not hold insurance with Avant at the time that he became a party to the TCI Proceeding, based on him providing written notification of receipt of the subpoena in the TCI Proceeding (by providing a copy of the letter accompanying the subpoena); and

(b)    at least three TCI surgeons ([Dr 1], [Dr 4] and [Dr 5]) based on their written notifications of individual complaints from former TCI patients, given prior to the commencement of the TCI Proceeding.

210    Dr Darshn submits that Avant has not proffered any explanation for this differential treatment other than the fact that Dr Darshn failed to send it a copy of his subpoena.

211    Further, Dr Darshn submits that:

(a)    In early 2019, Dr Darshn called Avant’s Medico-Legal Advice Service seeking advice and orally informed Avant’s representatives that he had been served with the subpoena in the TCI class action.

(b)    During Dr Darshn’s second conversation with Avant’s Medico-Legal Advice Service, Ms Gillman asked Dr Darshn to provide Avant with a copy of the subpoena “in case further advice is required”. Ms Gillman did not advise Dr Darshn that provision of a copy of the subpoena would serve his interests – whether or not he required further advice in relation to it – because it may constitute notice of a potential claim against him in the TCI class action. Nor did she advise him to provide any other form of written notice capable of achieving this end. This is despite the fact that Ms Gillman was aware of the existence of the TCI class action and of the possibility that Dr Darshn could be joined as a defendant.

(c)    Avant represented to its members and potential members that the Medico-Legal Advice Service was available to its members to provide specialist medico-legal advice and, in its product disclosure statement, that its members had access to the service which was “[comprised of] more than 70 in-house lawyers, medical advisors and claims managers across the country … available to members around the clock providing expert advice in an emergency when you need it most”.

(d)    As Ms Gillman conceded:

(i)    the Medico-Legal Advice Service was staffed by experienced solicitors whose role was to provide expert legal advice;

(ii)    one of the roles of the Medico-Legal Advice Service was to advise members when adverse events should be notified to Avant (including incidents that might lead to a claim in the future), as advertised on Avant’s website; and

(iii)    the Medico-Legal Advice Service’s solicitors, including those who took Dr Darshn’s calls, were subject to the professional duties and responsibilities owed by solicitors to clients in advising Avant members who called the advice line, including a duty to act in their best interests and to avoid conflicts of interest (noting the obvious conflict here between Dr Darshn’s interests and that of Avant).

212    Dr Darshn submits that the failure of Avant to advise Dr Darshn to protect his interests by the provision of written notice is not to be considered in isolation, but arises in the context of Avant’s other alleged breaches of the duty of utmost good faith.

213    Dr Darshn submits that Avant’s reliance on the requirement of notice in writing of “claims” under the terms of the policy, or of “facts that might give rise to a claim” within the meaning of s 40(3), involves a breach of its duty of utmost good faith, with the consequence that:

(a)    Avant is prevented by operation of s 14 from relying on the provisions of the contract of insurance to deny the claim for indemnity;

(b)    further or alternatively, Dr Darshn is entitled to specific performance based on Avant’s breach of a term of the insurance contract implied by law by operation of s 13.

214    Avant’s submissions may be summarised as follows. Avant submits that it has not been demonstrated as a matter of fact that there was any capricious, unreasonable or arbitrary conduct on the part of the insurer; ss 13 and 14 do not give any additional right to coverage, nor to damages that are equivalent to coverage, but merely operate in circumstances where the insurer has made a decision not to cover where there is an obligation to cover, or where the insurer has handled a claim incorrectly.

215    Avant submits that: the comparison sought to be made between Dr Darshn and the other doctors does not exist; in the case of [Dr 3], who is perhaps arguably the closest comparator, [Dr 3] gave notice in writing by an email which attached the subpoena he had received together with a list of his patients “just in case” a claim was made against him; Avant accepted this as being notice for the purpose of s 40(3).

216    Avant makes the following further submissions:

(a)    As a matter of statutory construction, s 40(3) deals exclusively with the potential benefits available to those insureds who notify in writing facts that may give rise to a claim. Section 40(2) contains the requirement for an insurer to inform the insured in writing of the effect of s 40(3). There is no scope for the application of s 13 as an adjunct or an alternative to the benefits conferred by those express provisions.

(b)    The type of conduct which s 13 seeks to ameliorate is conduct that can fairly be described as containing an element of capriciousness, bad dealing or a lack of clean hands. There is nothing in the matters relied on by Dr Darshn in his submissions that could conceivably come within the ambit of s 13.

(c)    Dr Darshn seeks to reverse the effect of s 40(3) and to place an onus on an insurer, during a telephone conversation, to divine both the “facts” and the likelihood of a claim, to make a link between the two, and to exhort an insured to provide a notification to which s 40(3) applies according to its terms.

(d)    Dr Darshn’s submissions elide two important matters. Dr Darshn’s communication concerned the receipt by him of a subpoena in proceedings to which he was not a party. That is a regular occurrence for the Medico-Legal Advice Service staff. Dr Darshn was advised to send the subpoena in if he wanted help with it. On his own evidence, he did not want to incur any costs by making a notification of any sort. At no time did Dr Darshn provide any information in the telephone call that should have alerted Ms Gillman as to facts that might give rise to a claim being made against Dr Darshn. Dr Darshn knew the procedure that Avant followed when he notified claims or sought advice from the MLA.

(e)    The facts and circumstances relied on in Dr Darshn’s submissions are ethereal, unconnected, and unable to support the weight of the submission made. A number of unconnected facts or legal contentions, such as the fact that Avant’s Medico-Legal Advice Service staff were legally qualified and that it was a free legal advice service, do not combine to create “strands in a cable” sufficient to support an inference of fact or a submission based on the existence of that fact: cf Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at [98].

(f)    Dr Darshn’s submissions misstate the context in which the conversations occurred. There was no retainer of Avant through the Medico-Legal Advice Service. It was a free legal advice service. The circumstances did not create a relationship of solicitor and client, much less one in which a potential conflict of interest might arise. Until Dr Darshn sought to make a claim after the policy period had expired, and without having availed himself of the ability to notify circumstances that might give rise to a claim, he and Avant were not in conflict.

217    In light of my conclusion, above, that the Second Contention is substantially made out, it is not strictly necessary to determine the other contentions. However, as already indicated, I consider it appropriate to do so for the sake of completeness.

218    Had I not formed the view that the Second Contention is substantially made out (that is, that s 40(3) operates in the circumstances of this case), I would have concluded that, in all the circumstances, Avant’s denial of Dr Darshn’s claim for indemnity in respect of Ms Sanchez’s claim against him in the TCI Proceeding, and the legal defence costs associated with defending her claim in the proceeding, constituted a breach of Avant’s duty of utmost good faith. I note in particular the following aspects of the facts and circumstances, which would have been apparent to Avant in considering Dr Darshn’s claim for indemnity.

219    First, Dr Darshn called Avant’s Medico-Legal Advice Service twice in early 2019. It is the second conversation that has greater relevance for present purposes as the TCI Proceeding was expressly referred to in that conversation. Although Avant was aware of the nature of the TCI Proceeding, and of the terms and breadth of the subpoena in the TCI Proceeding, Avant did not advise or inform Dr Darshn (during the conversation or in the days or weeks following the conversation) of the effect of s 40(3) of the Insurance Contracts Act and that he needed to send Avant a copy of the subpoena if he wanted to be able to rely on s 40(3) in the event that he was joined to the TCI Proceeding.

220    Avant held out its Medico-Legal Advice Service as providing advice, not only in relation to claims that may need to be notified, but also facts that might give rise to a claim (see [100] above).

221    Although the 2015-16 Avant policy contained, on page 9, a statement about the effect of s 40(3), neither the 2017-18 policy nor the 2018-19 policy contained any like statement. The 2015-16 policy was issued some years before the relevant conversation (which took place in 2019). I was not taken to any other document by which Avant informed Dr Darshn of the effect of s 40(3).

222    It is true that Avant, both during the conversation and in a subsequent email, suggested that Dr Darshn send Avant a copy of the subpoena. However, the reason given for doing so was: in case he needed “further advice”. At that stage, he had already provided documents in response to the subpoena and it was not apparent that he needed any further advice. The position would likely have been very different had Avant informed Dr Darshn of the effect of s 40(3) and that he needed to send the subpoena to Avant if he wanted to be able to rely on s 40(3) in the event that he was joined to the TCI Proceeding.

223    Secondly, at or about the time of the second conversation, Avant was aware of the nature of the TCI Proceeding and of the possibility, if not the likelihood, that the TCI surgeons might be joined as defendants to the proceeding. In February 2019, Avant had received emails from MDL that provided details about the TCI Proceeding. Key aspects of those emails have been summarised at [155](a) to (d) above. As noted in [156] above, the correspondence from MDL to Avant described the nature of the TCI Proceeding and the causes of action and common questions in that proceeding. It was clearly apparent that many of the causes of action were open to being deployed against the TCI surgeons (such as Dr Darshn) as well as the TCI entities.

224    Thirdly, at the time of the second conversation, Avant had a copy of the subpoena (or, more accurately, a subpoena in substantially the same terms as the subpoena received by Dr Darshn) as other doctors insured by Avant had been served with such a subpoena and had provided a copy to Avant. The subpoena was expressed in far broader terms than a usual subpoena to produce documents. The subpoena conveyed the possibility, if not the likelihood, of the TCI surgeons being joined as defendants to the TCI Proceeding.

225    Fourthly, Avant appears to have adopted the position (in my view correctly) that if an insured doctor who received the subpoena in the TCI Proceeding provided a copy of the subpoena to Avant, this would constitute the giving of notice in writing to Avant of “facts that might give rise to a claim” against the insured for the purposes of s 40(3) in relation to a claim against the doctor in the TCI Proceeding. It appears to be the case that Avant accepted [Dr 3’s] claim for indemnity on the basis of his sending Avant a copy of the covering letter attaching the subpoena in the TCI Proceeding, suggesting that Avant considered this notification to suffice for the purposes of s 40(3). (Although Avant submits that [Dr 3] sent Avant a copy of the subpoena itself and a list of patients, that submission does not have a reference to any evidence to make good that factual proposition.) Further, in Avant’s letter dated 1 September 2020, refusing Dr Darshn’s claim for indemnity (see [120] above), in the context of discussing s 40(3) and the requirement that the notice be in writing, Avant noted that “[y]ou did not provide the subpoena to us”. This also tends to suggest that Avant has adopted the position that sending it a copy of the subpoena in the TCI Proceeding would constitute the giving of notice of “facts that might give rise to a claim” against the insured for the purposes of s 40(3). The relevance of this point is that, had Dr Darshn been advised to send Avant a copy of the subpoena for the purposes of s 40(3), and consequently done so, Avant would likely have considered him entitled to the benefit of the provision.

226    The authorities discussed above indicate that an insurer’s statutory obligation to act with utmost good faith may require the insurer to act, consistently with commercial standards of decency and fairness, with due regard to the interests of the insured: see, eg, CGU v AMP at [15] per Gleeson CJ and Crennan J. Having regard to the matters referred to above, which would have been apparent to Avant in considering Dr Darshn’s claim for indemnity, in my view Avant’s statutory obligation to act with utmost good faith required it to grant him indemnity with respect to Ms Sanchez’s claim in the TCI Proceeding and the associated legal defence costs. In my opinion, having regard to the four matters set out above, it was unfair and unreasonable not to do so. The first matter is that the effect of s 40(3) was not made apparent to Dr Darshn at or about the time of the second conversation. The second and third matters combine to show that Avant was already aware of the TCI Proceeding and the possibility, if not the likelihood, that Dr Darshn might be joined as a defendant. The fourth matter shows that the relevant step that Dr Darshn would have needed to take to be covered was merely to send Avant a copy of the subpoena.

227    Insofar as Avant submits that, as a matter of statutory construction, there is no scope for s 13 to operate beyond the terms of s 40(2) and s 40(3), I do not accept that submission. Section 12 makes clear that the duty of utmost good faith is not to be read down by the subsequent provisions of the Insurance Contracts Act.

228    Insofar as Avant submits that the type of conduct that s 13 seeks to ameliorate is conduct that can fairly be described as containing an element of capriciousness, bad dealing or a lack of clean hands, I consider this to take too narrow a view of the duty. It is unhelpful to seek to substitute other words such as these for the statutory language. Further, as Allsop CJ stated in Delor Vue at [347], “[i]t is not appropriate to seek to define the standard within s 13”.

229    For these reasons, had I not concluded that the Second Contention was substantially made out (that is, that s 40(3) operates in the circumstances of this case), I would have concluded that Avant breached its duty of utmost good faith in rejecting Dr Darshn’s claim for indemnity.

The Sixth Contention

230    Dr Darshn’s Sixth Contention is that, on a proper construction of the 2017-18 policy and/or the 2018-19 policy, Ms M’s Complaint, Ms Scotford’s claim and/or Ms Summers-Hall’s claim (on the one hand) and the TCI Proceeding (on the other) arose out of a series of related single acts, errors, omissions or occurrences. Accordingly, it is contended, they are to be treated as a single “claim” under the policy in force at the date the first of the series of related claims commenced.

231    This contention is based on (what Dr Darshn describes as) the ‘aggregation clause’ in the Avant policies. The relevant term is paragraph (f) under the heading “How much we will pay” (see [46] above). For ease of reference, paragraph (f) is set out again:

all claims or requests for indemnity under this policy, which arise from, or are attributable to, a single act, error, omission or occurrence or series of related single acts, errors, omissions or occurrences, will be treated under this policy as one claim or one request for indemnity.

232    Dr Darshn’s submissions in relation to this contention can be summarised as follows:

(a)    Each of the relevant Avant policies includes an ‘aggregation clause’ in terms which commonly appear in policies of this sort.

(b)    Generally, these provisions are enlivened where there is a “unifying factor” that enables two or more separate claims to be treated as a single claim under the contract: Bank of Queensland at [1], [9]-[10]; see also Lloyds TSB General Insurance Holdings Ltd v Lloyds Bank Group Insurance Co Ltd [2003] 4 All ER 43. In particular:

(i)    where a clause makes reference to a “series” of acts, this is typically construed as a reference to “a number of events of a sufficiently similar kind following one after the other in temporal succession” (Bank of Queensland at [10]);

(ii)    a reference to “related” acts generally implies “some inter-connection between the matters or transactions, or in other words that they must in some way fit together”, which is in turn an “acutely fact sensitive exercise” (Bank of Queensland at [12], quoting AIG Europe Ltd v Woodman [2017] Lloyd’s Rep IR 209 at [22]); and

(iii)    a distinction is to be drawn between aggregation clauses where the unifying factor is an act as compared to a cause, with the latter typically being a broader concept (Bank of Queensland at [14]).