Federal Court of Australia

McDonald v Australian Life Insurance Distribution Pty Ltd [2025] FCA 678

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent’s interlocutory application dated 29 April 2025 (first application) is dismissed.

2.    The second respondent’s interlocutory application dated 28 April 2025 (second application) is dismissed.

3.    The first respondent pay the applicant’s costs of the first application, such costs to be taxed in default of agreement.

4.    The second respondent pay the applicant’s costs of the second application, such costs to be taxed in default of agreement.

5.    The proceeding is listed for a case management hearing at 9:30am on 3 July 2025.

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

REASONS FOR JUDGMENT

NESKOVCIN J:

1    The first respondent, Australian Life Insurance Distribution Pty Ltd (ALID), seeks an order under s 33N(1) of the Federal Court of Australia Act 1976 (Cth) (the Act) that the proceeding, insofar as it concerns ALID, no longer continue as a representative proceeding.

2    The second respondent, Lendi Group Distribution Pty Ltd (formerly, Aussie Home Loans Investments Pty Ltd) (AHLI), seeks an order, pursuant to ss 33N(1) and/or 33ZF(1) of the Act, that the proceeding as against AHLI no longer continue as a representative proceeding.

3    ALID’s application under s 33N(1) of the Act is based on satisfaction of one or both of the alternative ‘gateways’ in ss 33N(1)(c) and (d), on the grounds that:

(a)    the representative proceeding will not provide an efficient and effective means of dealing with the claims of group members; and/or

(b)    it is otherwise inappropriate that the claims be pursued by means of a representative proceeding.

4    ALID relies on two affidavits of Mr Justin Vaatstra, solicitor, dated 29 April 2025 (April Vaatstra affidavit) and 9 May 2025 (May Vaatstra affidavit).

5    AHLI relies on s 33N(1)(a) to (d) of the Act and submits that it is in the interests of justice to declass the proceeding on the grounds that:

(a)    the costs that would be incurred if the proceeding were to continue as a representative proceeding are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding (Costs Ground);

(b)    all the relief sought can be obtained by means of a proceeding other than a representative proceeding under Pt IVA of the Act (Individual Proceeding Ground);

(c)    the representative proceeding will not provide an efficient and effective means of dealing with the claims of group members (Efficiency Ground); and

(d)    it is otherwise inappropriate that the claims be pursued by means of a representative proceeding (Alternative Ground).

6    AHLI relies on two affidavits of Ms Kate Green, solicitor, dated 28 April 2025 and 9 May 2025, as well as the April Vaatstra affidavit.

7    The applications are opposed. The applicant submits that a representative proceeding is the most efficient way for this case, which is a “systems” case, to proceed because there are substantial common questions that will resolve many, if not all, of the disputes between the parties. Furthermore, the claims will require expert evidence, are legally and factually complex and cannot practicably be resolved by individual group members in alternative dispute forums.

8    For the reasons set out below, I am not satisfied that the respondents have established the trigger conditions in s 33N(1)(a), (c) or (d) of the Act. Even if the conditions in s 33N(1)(a)–(d) were established, it would not be in the interests of justice to declass the proceeding and the applications should be dismissed.

RELEVANT PRINCIPLES

9    Section 33N(1) of the Act provides:

(1)    The Court may, on application by the respondent or of its own motion, order     that a proceeding no longer continue under this Part where it is satisfied that it     is in the interests of justice to do so because:

(a)    the costs that would be incurred if the proceeding were to continue as     a representative proceeding are likely to exceed the costs that would     be incurred if each group member conducted a separate proceeding; or

(b)    all the relief sought can be obtained by means of a proceeding other     than a representative proceeding under this Part; or

(c)    the representative proceeding will not provide an efficient and     effective means of dealing with the claims of group members; or

(d)    it is otherwise inappropriate that the claims be pursued by means of a     representative proceeding.

10    Section 33N is discretionary: ISG Management Pty Ltd v Mutch (2020) 385 ALR 146; [2020] FCAFC 213 at [21] (White, Lee and SC Derrington JJ).

11    In ISG, the Full Court observed, at [17], that the three logical stages of a s 33N enquiry are:

[F]irst, whether or not any or all of the matters specified in s 33N(1)(a) to (c) (the Costs Ground and/or the Individual Proceeding Ground and/or the Efficiency Ground) are made out; secondly, consideration as to whether there was another, that is, different reason why it is inappropriate that the claims be pursued by means of a class action (that is, whether the Alternative Ground is made out); and thirdly, if one or other of the grounds are made out whether, because of that established ground or grounds, the primary judge should reach a level of satisfaction that it is in the interests of justice to declass the proceeding.

[Emphasis in original]

12    Generally speaking, s 33N(1) requires consideration of the comparator of whether it is in the interests of justice that the proceeding be determined in numerous non-representative proceedings. One compares how the factors specified in s 33N(1)(a)–(d) would apply to hypothetical non-representative proceedings: Stack v AMP Financial Planning Pty Ltd (No 2) (2021) 401 ALR 113; [2021] FCA 1479 at [26] (Beach J).

13    The implicit focus in s 33N(1)(c) is on the commonality of issues and whether the representative proceeding is efficient and effective to resolve the common issues, rather than resolution by way of individual proceedings. Section 33N(1)(d) is concerned with whether the representative proceeding is an appropriate vehicle to pursue the claims. Generally, the focus of ss 33N(1)(c) and (d) is on the efficiency or appropriateness of the group members’ claims being pursued in a representative proceeding: Stack at [26].

14    Section 33N(1) is not about whether a representative proceeding or the continuance of such a proceeding is efficient in an absolute sense. Rather, the ideas embodied in s 33N(1)(a)–(c), whether explicitly or implicitly, are about relative efficiency concerning the particular context and case at hand in terms of a comparison between the representative proceeding on the one hand, and the comparator non-representative proceedings on the other hand: Stack at [28].

15    In Stack, Beach J went on to observe at [30]–[37]:

[30] In relation to s 33N(1)(c), which the respondents have focused on, the following factors are relevant and must be directed to the particular circumstances of the case.

[31] First, to what extent do the individual issues outweigh common issues? In other words, is the area of issues common to all claims so limited, in comparison with the totality of the issues that have to be resolved both as to liability and relief as between each of the group members and the respondents, that the proceeding so much involves an investigation of individual circumstances as to justify a s 33N order?

[32] Second, would the determination of non-common issues add to the complexity of the preparation for and the duration of the trial as compared with a case in which those issues were common to all group members?

[33] Third, is there any single event or system of conduct that makes the claims suitable for representative proceedings? In this case, the respondents say that given the differences in products, AMP authorised representatives, AMP licensees, agreements and disclosures relevant to the applicants and group members, there is no common element.

[34] Fourth, is it the case that the resolution of the applicants’ claims offers no real guidance for group member claims, for example, where there is such a lack of commonality between an applicant’s claim and those of group members such that the determination of the applicant’s claim will not offer any real guidance as to how group members’ claims would be determined? The respondents say that this applies to the present case given the nature of the claims made by each applicant.

[35] Fifth, are the documents and evidence common to the applicants and group members? The respondents say here that the documents, systems and agreements relied upon to establish the claims in the present case have insufficient commonality.

[36] Sixth, as I have indicated, it is generally necessary to compare the cost and expense of the existing representative proceeding against the hypothetical cost and expense of the alternative non-representative proceedings.

[37] Further, whether it will be in the interests of justice to de-class a proceeding, in the present context using the s 33N(1)(c) trigger, requires a consideration of the public interest in the administration of justice and requires a consideration of the principal objects of Pt IVA, including promoting the efficient use of court time. In other words, to show the existence of a trigger does not inevitably lead to it being in the interests of justice to de-class. There may be other good reasons why the proceeding ought not be de-classed.

16    “Proceeding” in s 33N(1) means the “representative proceeding”. In Community and Public Sector Union v Victoria (1999) 90 IR 4; [1999] FCA 743 (CPSU) at [18]–[19], Marshall J agreed with the submission that s 33N(1) does not arm the Court with jurisdiction to make orders that only certain parts of the proceeding not continue under Pt IVA. AHLI submits that, insofar as the respondents seek orders that the proceeding be declassed as against each of them, CPSU should not be followed, relying on Bray v F Hoffman-La Roche Ltd [2003] FCA 1505 at [18] (Merkel J). Alternatively, if CPSU is to be followed, AHLI submits that, first, s 33ZF of the Act empowers the Court to partially declass the proceeding as against one respondent. Secondly, the combined effect of the applications is that the Court can make orders declassing the proceeding.

PLEADED ALLEGATIONS

17    ALID offers the insurance product My Protection Plan (MyPP), and historically offered Mortgage Protection Plan (MPP). MyPP is an insurance policy that insures against death and terminal illness, trauma, and specified injury. MPP was an insurance policy that insured against death and terminal illness, 11 specified conditions, loss of income, and accidental injury.

18    AHLI carries on business providing mortgage broking services. ALID holds an Australian financial services licence (AFSL) and is authorised to deal in financial products, including general insurance products. AHLI and brokers engaged by AHLI were authorised representatives of ALID under ALID’s AFSL. The AFSL did not authorise the provision of personal financial product advice.

19    The applicant (on behalf of himself and the group members) alleges that:

(a)    MyPP and MPP were unsuitable and should not have been offered or sold to the applicant or group members;

(b)    AHLI had a “system” which brokers were required to follow in advising clients in relation to home loan options;

(c)    the “system” included:

(i)    brokers obtaining financial information from customers, including as to income and expenses;

(ii)    brokers requesting from customers various forms of information to verify the financial information obtained from customers;

(iii)    brokers using proprietary software to prepare loan applications and identify suitable loan products for customers;

(iv)    following assessment of the financial information, brokers were trained and expected to recommend a home loan option for the customer and to recommend that the customer purchase MPP or MyPP (referred to as Insurance Advice); and

(v)    furthermore, brokers were trained and expected to cause any home loan application to be lodged with the relevant lender for approval, and any application for MPP or MyPP to be lodged with the relevant insurer.

20    The applicant also alleges that some brokers told some group members that it was not possible to obtain approval for a home loan unless they also purchased an MPP or MyPP policy (the Necessity Recommendation).

21    The applicant claims that:

(a)    the extent of the information that a group member was required to provide to a broker, to enable them to provide advice in relation to available home loan options and make any applications for home loans on their behalf, put the broker automatically in a position where they had to consider the group member’s personal circumstances and needs;

(b)    in that context, any advice given in relation to MyPP or MPP must have been “personal advice” (as that term is used in the Corporations Act 2001 (Cth)) because a reasonable person in the position of the group member might have expected the broker to have considered one or more of the person’s objectives, financial situation and needs; and

(c)    furthermore, no group member should have received personal advice about MyPP or MPP (or any other life insurance product) from the respondents or the brokers at all, because they were not authorised to provide personal advice.

22    The applicant alleges that, by giving personal advice to group members, the brokers failed to comply with obligations to:

(a)    act in the best interests of the group members;

(b)    warn the group members about the completeness or accuracy of the information used by the brokers;

(c)    give appropriate advice (including because MPP and MyPP were allegedly unsuitable and uncompetitive); and

(d)    prioritise the interests of group members.

23    The applicant alleges that:

(a)    but for those compliance failures by brokers, the group members would not have purchased the policies;

(b)    ALID failed to take reasonable steps to ensure that the brokers complied with their obligations and, in doing so, breached s 961L of the Corporations Act;

(c)    ALID is responsible for the conduct of the brokers by virtue of s 917B of the Corporations Act; and

(d)    ALID is liable under ss 917E, 917F and 961M of the Corporations Act to compensate the group members (or the relevant contracts should be rescinded or declared void) in respect of alleged loss or damage because of a contravention of Div 3 of Pt 7.7A of the Corporations Act.

24    As against AHLI, the applicant alleges that the brokers engaged in misleading conduct by implementing the “system”, which involved brokers requesting personal and financial information from group members, only recommending them MPP or MyPP, and providing group members with the relevant materials for the products. Further, AHLI, by the brokers, represented to group members, among other things, that they had made all reasonable enquiries, that MyPP or MPP was based on their personal circumstances, and MyPP or MPP was a suitable insurance product for group members (Insurance Advice Representations). By making the Insurance Advice and Necessity Representations, the brokers and/or AHLI engaged in misleading and deceptive conduct contrary to s 12DA(1) of the Australian Securities and Investments Commission Act 2001 (Cth) or s 18 of the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth). Further, AHLI is responsible for the representations made by the brokers by operation of s 78(1) of the National Consumer Credit Protection Act 2009 (Cth) and/or under the law of agency.

25    ALID and AHLI deny that brokers provided personal advice, deny that brokers were trained in the manner alleged and deny that brokers made the Insurance Advice Representations and/or the Necessity Representation. ALID also pleads the steps that the brokers were trained to follow when offering MyPP or MPP to potential customers.

alid’s submissions

26    ALID’s application under s 33N(1) is founded on the satisfaction of one or both of the alternative ‘gateways’ in s 33N(1)(c) and (d).

27    ALID submits that these ‘gateways’ are satisfied on the following grounds.

28    First, ALID submits that the nature of the allegations against ALID are such that the individual circumstances of each group member will need to be considered by the Court in order to establish liability and causation. In ALID’s submission, determining whether a group member received personal advice will require the Court to undertake an analysis of the individual circumstances of that group member, including the discussions and communications between the group member and the broker, as well as the broker’s compliance with the training provided by ALID.

29    Secondly, ALID submits that the total quantum of group members’ claims is disproportionately low relative to the risks and costs of the representative proceeding, with the result that group members – even if entirely successful – are likely to receive comparatively low amounts once legal costs and funding fees are taken out. ALID stated that, during the claim period (as defined), 13,439 MyPP or MPP policies were sold by 1,141 brokers. ALID used this information, and the total premiums paid by group members, to calculate the maximum quantum of group members’ claims in the event the claims are successful at trial. ALID used this ‘headline figure’ and, after deducting estimated legal expenses and the litigation funder’s fees, calculated a maximum pool available for distribution to group members, assuming the claims are successful. That final amount, ALID submits, is extremely low and demonstrates that the representative proceeding is not an efficient, effective or appropriate way of dealing with group members’ claims. The applicant disputes the headline figure and the analysis, which it says is flawed because the applicant will be entitled to recover their legal costs if the claims are successful at trial.

30    Thirdly, ALID submits that this likely low rate of return for group members (assuming the claim is successful) is exacerbated by the fact that participation rates in recent class actions relating to life and consumer credit insurance have been in the realm of 10-19%. This will mean that the legal costs will be borne by even fewer group members, reducing even further any pool of money available to group members who participate in a successful proceeding.

31    Fourthly, ALID submits that there are a number of alternative dispute resolution mechanisms pursuant to which a group member with a valid claim may, by contrast, fully recover the value of their claim, without any deduction for legal fees or litigation funder’s fees. ALID, as the holder of the AFSL, is a member of the Australian Financial Complaints Authority (AFCA). ALID is required to have an internal dispute resolution (IDR) procedure that is compliant with, among other things, ASIC’s Regulatory Guide 271 Internal Dispute Resolution. ALID submits that ALID’s IDR process provides group members with an alternative dispute resolution mechanism which is a more efficient and inexpensive way for group members to resolve their claims.

32    According to ALID, as at 31 January 2025, 105 complaints had been received from group members under ALID’s IDR procedures. Of those 105 complaints:

(a)    105 complaints were resolved;

(b)    50 complaints resulted in resolution comprising a refund of premiums; and

(c)    9 complaints were referred to AFCA.

33    Furthermore, ALID submits that group members can make complaints to AFCA at any time. ALID notifies customers about their right to complain to AFCA and provides AFCA’s details in the final response provided to complainants under ALID’s IDR procedure. ALID’s IDR process usually provides an outcome to the complainant within 30 calendar days. Even where ALID is unable to resolve a complaint within 30 calendar days, the complainant has the right to take the complaint to AFCA. ALID submits that the right to complain to AFCA is a further mechanism for group members to obtain relief, including a refund of premiums, more quickly and efficiently than the present proceeding, without the attendant legal expenses and litigation funding costs.

34    ALID further submits that individual group members can also commence proceedings in administrative tribunals, such as NCAT or VCAT.

AHlI’s submissions

35    AHLI relies on the grounds in s 33N(1)(a) to (d) of the Act and submits that it is in the interests of justice to declass the proceeding for the following reasons.

36    First, AHLI submits that the costs of a representative proceeding are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding because of the availability of other dispute resolution forums, including administrative tribunals and dispute resolution processes initiated with AFCA.

37    Secondly, AHLI submits that the relief sought by group members in the proceeding can be obtained through other means, including the alternative dispute resolution forums set out in paragraph 36.

38    Thirdly, AHLI submits that the applicant’s claims are “highly” individualised. Each alleged Insurance Advice Representation, for the approximately 13,439 MyPP or MPP policies sold during the claim period, will need to be considered on a case-by-case basis in their proper factual context. AHLI submits that analysing the relevant circumstances of each group member will involve significant time and expense and, therefore, the proceeding is not an efficient or effective way to deal with the applicant’s claims.

39    Fourthly, AHLI submits that group members will stand to receive little, if any, compensation from a settlement or judgment because the best-case financial outcome is likely to be dwarfed by legal costs and disbursements once probable participation rates are taken into account.

40    AHLI submits that, for those reasons, it would be against the interests of justice to allow the proceeding to continue as a representative proceeding as it would not be an efficient use of the Court’s time and parties’ resources, and it would impose a significant cost burden on group members without any real efficiency upside, when compared to the pursuit of individual actions.

consideration

41    Although AHLI relies on the grounds in s 33N(1)(a)–(d), and ALID relies on the grounds in s 33N(1)(c)–(d), the respondents’ submissions largely focus on the Efficiency Ground. The respondents submit that the “highly” individualised allegations mean that the proceeding will not provide an efficient and effective means of dealing with the claims of group members in the proceeding. That is because, the respondents submit, it will be necessary for the Court to examine the circumstances of each group members’ interactions and communications with 1,141 brokers to determine whether group members were provided with personal advice: see AS v Minister for Immigration and Border Protection (Ruling No 7) [2017] VSC 137 at [52]–[53] (J Forrest J) citing Multiplex Funds Management Ltd v P Dawson Nominees Pty Ltd (2007) 164 FCR 275; [2007] FCAFC 200 at [13], [15] (Lindgren J) and [127]–[133] (Jacobson J, with whom French J, as his Honour then was, agreed).

42    Although the applicant identified several legal and factual questions which they submit are common to all group members, the “systems” case is central to the resolution of this application. It is alleged that AHLI designed, implemented and operated a “system” which involved brokers obtaining detailed personal financial information from potential customers, considering that information, with the assistance of proprietary software, and producing a report that contained a recommendation to the customer as to a suitable home loan product and, at the same time, recommending that the customer purchase the MyPP or MPP policies. The “systems” case also alleges that AHLI trained and expected brokers to recommend MPP or MyPP to customers.

43    The formulation and determination of common questions based on a pleaded system of conduct is well-established in representative proceedings: see e.g., Bywater v Appco Group Australia Pty Ltd [2018] FCA 707; Nguyen v Rickhuss [2023] NSWCA 249; Nathan v Macquarie Leasing; Fox v Westpac (No 1) [2024] VSC 625.

44    The respondents’ submissions on the Efficiency Ground rest largely on the premise that it would not be possible for the Court to conclude on a wholesale basis that brokers gave personal advice each time they offered or sold MyPP or MPP. That submission focuses on the outcome of the “systems” case. A common question should be able to be formulated as to whether the alleged “system” existed and applied across all group members: Asifiri-Otchere v Swann Insurance (Aust) Pty Ltd (No 2) (2020) 148 ACSR 14; [2020] FCA 1355 at [9]–[10], [36] (Gleeson J). It may be accepted that the determination of whether the “system” was applied and implemented in the particular circumstances of a group member would involve a consideration of the circumstances of the individual group member. I am satisfied, however, that the resolution of a common question as to whether the “system” existed, and involved AHLI training and expecting brokers to recommend MyPP or MPP to customers, would aid in the resolution of the claims generally given its centrality to the pleaded allegations: see e.g., paragraphs 21, 21C, 21E, 23–24, 40, 45–46, 48, 55, 57, 69C, 70 and 70B of the Amended Statement of Claim.

45    A common question as to whether the “system” existed and applied across all group members would allow the respondents to resist the allegation made against them by adducing evidence about the training actually provided to brokers and, potentially, the circumstances of particular customers: Swann at [36] (Gleeson J). The respondents deny that the group members were provided with personal advice. Indeed, the provision of personal advice was not authorised under ALID’s AFSL. It seems inconceivable, and the respondents did not suggest, that they would seek to examine or lead evidence as to the individual group members’ circumstances to suggest that brokers, in fact, provided customers with personal advice.

46    For the purpose of the Individual Proceeding Ground, it was not in dispute that all of the relief sought by group members in the proceeding could be obtained in individual proceedings, as invariably is the case: ISG at [16]. The respondents submitted, however, for the purpose of the Costs Ground, that the costs of the representative proceeding are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding, because of the availability of other alternative dispute resolution forums, such as the IDR process and AFCA, and the ability to institute proceedings in administrative tribunals, such as NCAT and VCAT. The applicant disputes that alternative dispute resolution forums and administrative tribunals are appropriate venues to resolve group members’ claims.

47    There was no evidence that any group member has invoked the IDR or AFCA complaints process to resolve a complaint raising the suite of issues raised in the proceeding. Moreover, I accept the applicant’s submission that a group member would not be likely do so without legal assistance given the factually and legally complex issues raised in the proceeding.

48    The applicant’s claim regarding the “systems” case is likely to be substantially, if not wholly, reliant on the production of documents from the respondents. ALID noted that AFCA adopts an inquisitorial approach and will often request parties or non-parties to provide information, and it can also engage independent experts. AFCA can also compel parties to produce documents, if they are requested by AFCA. ALID accepted that a complainant cannot compel a party to produce documents to AFCA. If a complainant wants documents to be produced to AFCA, AFCA must agree to make a request that the documents be produced. There was no evidence about AFCA’s capacity to deal with thousands of complaints. Nevertheless, it is difficult to envisage that AFCA would agree to burden itself with requests for voluminous documents or that it would have the capacity to deal with thousands of complaints more efficiently than a representative proceeding.

49    As the respondents concede, NCAT and VCAT do not have jurisdiction to deal with claims under the Commonwealth legislation under which the applicant’s claims are made. Although a group member may be able to bring some of the claims in the proceeding under equivalent State legislation, they could not bring the suite of claims that are raised in the proceeding.

50    I do not regard the administrative tribunals and alternative dispute resolution forums suggested by the respondents as appropriate venues to resolve group members’ claims. In my assessment, the proceedings to be compared with the representative proceeding are individual proceedings in several courts brought by each group member: Bright v Femcare (2001) 188 ALR 633; [2001] FCA 1477 at [75] (Lindgren J).

51    There was no evidence, by the respondents or the applicant, in relation to the costs that might be incurred if the proceeding were to continue as a representative proceeding, or the likely costs of individual court proceedings by each group member. Rather, the respondents relied on publicly available information regarding the legal fees incurred by the applicant’s solicitors in settlements in recent class actions to estimate the applicant’s legal costs in the proceeding.

52    It may be accepted that the costs that may be incurred if the proceeding were to continue as a representative proceeding would be considerable. The claims raised by the group members are legally and factually complex and the applicant submits that expert evidence will be required as to the alleged unsuitability of the MyPP and MPP policies. It is likely that the costs that would be incurred in individual court proceedings, raising claims of the kind raised in this case, would outweigh, if not significantly exceed, the likely costs in the proceeding. Moreover, in the context of the premiums paid for MyPP or MPP, individual court proceedings are likely to be uneconomic for group members.

53    As to whether the Alternative Ground is made out, other than the matters relied upon under the Efficiency and Costs Grounds, the respondents did not put forward another, that is, different reason why it is inappropriate that the claims be pursued by means of a class action.

54    A principal purpose of the Pt IVA regime is to promote efficiency and access to justice. In my assessment, the representative proceeding is the more efficient way to ventilate the claims in the proceeding, in circumstances where individual proceedings would be uneconomic and would otherwise give rise to a multiplicity of claims, the necessity for witnesses to give evidence on multiple occasions and the risk of inconsistent findings across similar claims.

55    I am not satisfied the gateways in s 33N(1)(a), (c) and (d), that is the Cost Ground, the Efficiency Ground and the Alternative Ground, are made out. That is to say, I am not satisfied that the respondents have established the trigger conditions in s 33N(1)(a), (c) and (d). The condition in s 33N(1)(b) is satisfied, for the reasons mentioned in paragraph 46 above.

56    If the gateways or conditions under s 33N(1)(a)-(d) are established, the Court is required to determine whether it is in the interests of justice to declass the proceeding because of the grounds in s 33N(1)(a)–(d): Cody Gemtec Retail Pty Ltd v Underwriting Members of Syndicate 2003 at Lloyd’s (Declassing Applications) [2024] FCA 1098 at [120] (Lee J) referring to Guglielmin v Trescowthick (No 2) (2005) 220 ALR 515; [2005] FCA 138 at 531 [71] (Mansfield J). Even were the conditions under s 33N(1)(a)-(d) established in the present applications, in my assessment, it would not be in the interests of justice to declass the proceeding for the reasons mentioned above.

57    As a result, it is unnecessary to deal with AHLI’s submissions regarding the correctness of CPSU. I observe, however, that CPSU might not have been an impediment to the relief sought by the respondents: see Rickhuss at [57] (Ward P, Leeming JA and Basten AJA).

confidentiality orders

58    ALID seeks suppression and non-publication orders under ss 37AF(1)(b) and 37AG(1)(a) of the Act in respect of Confidential Exhibit JTV-3 of the April Vaatstra Affidavit and Confidential Exhibit JTV-5 of the May Vaatstra Affidavit. ALID submits that the order is necessary to prevent prejudice to the proper administration of justice. ALID submits that without the order, commercially sensitive and confidential information would be revealed to the public. The information is contained in spreadsheets that refer to the total policy premiums and fees paid by group members and the value of claims paid to group members.

59    The applicant opposes the confidentiality orders. The applicant submits that ALID has not identified the prejudice that would occur to the proper administration of justice if the orders were not made. Furthermore, the applicant submits that because ALID deployed the information for the purpose of the application, group members should be entitled to the benefit of all of the information relied on. However, the applicant submits that if confidentiality orders were to be made, they should include carve-outs that enable the applicant, their legal advisers and others to access the relevant information.

60    The information contains commercially sensitive information in the nature of pricing information and premiums paid for MyPP and MPP policies, which ALID was required to disclose for the purpose of the application. ALID agrees that the applicant’s carve-outs are acceptable. Therefore, I am satisfied that it is appropriate to make an order under s 37AF of the Act, on the ground that the order is necessary to prevent prejudice to the proper administration of justice under s 37AG(1)(a), for the suppression and non-publication of Confidential Exhibit JTV-3 and Confidential Exhibit JTV-5 including the carve-outs sought by the applicant.

conclusion

61    For the reasons set out above, the applications to declass the proceeding will be dismissed. There is no apparent reason why the respondents should not pay the applicant’s costs of the application.

Associate:

Dated:    25 June 2025