AMP Ltd v Chubb Insurance Australia Ltd (No 2) (evidence by AVL) [2025] NSWSC 789 | Case summary

AMP Ltd v Chubb Insurance Australia Ltd (No 2) (evidence by AVL) [2025] NSWSC 789 | Case summary | Zoe

AMP seeks $300 million from the insurers, under its professional indemnity policy. As to the underlying insurance claim, AMP and its financial planners provide advice to clients. The Australian Securities and Investments Commission (ASIC) began to investigate AMP, including in respect of what became known as the provision of ‘fees for no service’. ASIC encouraged AMP to establish a remediation program, to compensate clients who had suffered loss as a result of receiving inappropriate advice or who had paid their adviser a fee without receiving advice.
In 2016, AMP established a remediation program (the Program) and proceeded to remediate clients, ultimately at a cost in some $800 million. In 2018, Mr Dainton became involved in the Program and had ultimate responsibility for its implementation. He oversaw a team of between 200 and up to 500 people.
AMP made a claim on its insurance in respect of the funds outlaid in the Program, up to the policy limit. The insurers declined indemnity. In April 2022, these proceedings were commenced. In December 2022, Ball J made directions for AMP to serve its lay evidence.
In May 2023, Mr Dainton left AMP’s employ and began working for another insurer. Mr Dainton continued to provide assistance to AMP. Indeed, this is the fifth proceedings in which he has done so. Mr Dainton has given evidence in an earlier proceeding for AMP.
In June 2023, Mr Dainton made an affidavit for AMP in these proceedings. The affidavit comprises 38 pages and 151 paragraphs. Mr Dainton referred to some 130 documents in an exhibit. Mr Dainton described the Program, and how it worked, in detail. Mr Dainton described the remediation review methodology for ‘fees for no service’ cases or ‘inappropriate advice’ cases, including the practices, policies and processes deployed, as well as governance and oversight by Deloitte and PricewaterhouseCoopers. As Mr Dainton described it, the Program was expected to cost some $2 billion and take more than 20 years to complete when he was enlisted to assist. He was responsible for a “reset” of the Program. Under his guidance, the Program ultimately cost some $800 million and was completed by 30 June 2021.
The parties progressively served their evidence. On 30 August 2024, the parties appeared before Ball J to take a hearing date. According to the transcript, AMP pressed for a hearing date in August 2025. There was some discussion as to when the parties should mediate, where AMP’s legal representatives would be occupied by a hearing in separate proceedings for a particular period. The transcript does not mention the availability of witnesses. His Honour made an order for mediation and listed the matter for trial for three weeks commencing on 4 August 2025, and that is, roughly a year later.
After the directions hearing, AMP’s in-house counsel notified Mr Dainton of the hearing dates. Mr Dainton indicated that he had planned a trip with his partner and family to the United Kingdom in August 2025. The extent to which Mr Dainton’s travel plans had then been finalised is not known.
The unavailability of Mr Dainton to give evidence at trial was not communicated to AMP’s external solicitors, nor to the defendants, nor the Court. Nor did AMP ensure that a subpoena to give evidence was served on Mr Dainton, to ensure his attendance at the trial. Nor would the insurers have known that the witness had not been subpoenaed. An issuing party is only obliged to serve a copy of a subpoena to produce on the other parties as soon as practicable after service of same: r 33.5, Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
Many months later, on 2 June 2025, the parties mediated, after which the parties continued to engage in without prejudice discussions. AMP then contacted its witnesses to inform them that the mediation had been unsuccessful. AMP’s in-house counsel also informed Ms Cahill that Mr Dainton had indicated to her that his overseas trip was taking place from late July to mid to late August 2025.
On 13 June 2025, Peden J made further orders to prepare the matter for trial. The availability of witnesses was not raised before her Honour. The parties began to compile documents for an electronic Court Book. On 26 June 2025, the parties were informed that I would be the trial judge.
On 30 June 2025, being five weeks before the commencement of the trial, AMP’s solicitors advised the insurers that AMP intended to bring an application to take Mr Dainton’s evidence by AVL link. Ms Cahill said she did not raise the matter until after a trial judge had been allocated, as the trial judge ought to hear the application.
Chubb and Lloyd’s advised that their clients did not consent to AMP’s proposal. On 8 July 2025, AMP filed its motion. Ms Cahill explained that, on 26 July 2025, Mr Dainton and his partner planned to depart on an overseas trip. Mr Dainton would not return to these shores until 22 August 2025. That is, the trial will begin and end while Mr Dainton is away. Mr Dainton is only available to give evidence between 11 and 14 August 2025, as he will be on a cruise before this and has made other plans with his partner’s family on other days. In particular, Mr Dainton will be attending his father-in-law’s 89th birthday party on 18 August 2025, before returning to Australia and his employment.
Absent compulsion, Mr Dainton is unwilling to interrupt his travels to return to Sydney to give evidence in person. It was proposed that Mr Dainton would give evidence via his laptop from an Air BnB in Sheffield, with the Court sitting outside of its usual hours to take his evidence,
The motion was initially heard on 14 July 2025. I was concerned to learn that AMP had not served a subpoena to give evidence on Mr Dainton. I was told that this had not been done as Mr Dainton proposed to be on holiday in London, was a person with his own family and “very human commitments” and not in AMP’s camp or control. Whilst one might have thought that those were good reasons to serve a subpoena, AMP was not inclined to do so as it would interrupt a significant family holiday in Europe and attending the 89th birthday of Mr Dainton’s father-in-law. This was said to involve an intersection between AMP’s ability to compel the witness “and the very human factor that he is someone who has other things in his life.”
At the conclusion of the hearing of the motion, I enquired whether AMP had investigated the possibility of putting Mr Dainton and his partner on a different cruise so that he could give evidence in the trial before departing overseas. I offered to schedule Mr Dainton’s evidence at a time in the trial when he might not normally be expected to appear. I invited AMP to make enquiries as to whether Mr Dainton’s current employer could accommodate some changes to his leave. I indicated that I was not minded to make the order sought, as unfairness would be occasioned to the insurers. I gave AMP an opportunity to make further enquiries as to whether other arrangements could be made. I strongly suggested that AMP serve a subpoena to give evidence on Mr Dainton.
On 14 July 2025, Ms Cahill made further enquires of Mr Dainton, who advised that it was important to his partner that they take this trip and important to their relationship that they be able to travel together. The trip had been organised to accommodate the varying availabilities and competing personal commitments of Mr Dainton’s partner’s other family members. The birthday party was being attended by some ten other family members (presumably of his partner, rather than himself). After the birthday party, Mr Dainton would then return to Australia to resume work on 25 August 2025, whilst his partner would take a separate trip with members of her extended family.
When the motion was further heard on 17 July 2025, Ms Cahill said that, if so required, Mr Dainton could give evidence in the London office of AMP’s solicitors during Australian court sitting times. Ms Cahill declined to serve a subpoena to give evidence on Mr Dainton, as it is not her practice nor, to her observation, the practice of her partners. Finally, Ms Cahill was instructed that, if the motion was not granted, then AMP would not issue a subpoena and would elect not to read Mr Dainton’s evidence. AMP would tender the documents exhibited to Mr Dainton’s evidence and seek leave to have another former employee provide an affidavit in respect of a spreadsheet referred to by Mr Dainton.

More recently, in Roberts-Smith v Fairfax Media Publications Pty Ltd (No 24) [2021] FCA 1461, when considering whether witnesses were giving evidence voluntarily, Abrahams J observed “Certainly the witnesses have been subpoenaed, but it is not uncommon for that to occur, and as said by the applicant, is reflective of good practice. A subpoena is issued to ensure a witness attends court, and can be issued even if a witness is cooperating”: at [83].
A subpoena to give evidence is served to ensure that the Court can administer justice, in two key respects: first, so that the Court can decide the case on the basis of the evidence on which the parties wish to rely in support of their claim or defence; second, so that the Court can decide the case in accordance with the case management principles in Part 6 of the Civil Procedure Act 2005*.* As the High Court observed in UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45, “The timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute”: at [55]. Serving a subpoena to give evidence, whenever there is a chance that a witness may not attend as initially indicated, reduces the prospect of trials not going ahead as scheduled.
A classic case in which a subpoena should be served is where the witness is a former employee of the party who wishes to call them. The witness is no longer under the party’s control. Another classic case is where the witness advises that they may not be able to attend the trial after all, having made competing arrangements.
I do not accept that Ms Cahill’s practice is good practice. Where hours and days have been spent with a witness, preparing a detailed affidavit, it is good practice to secure their attendance at trial. The need to do so can be simply and clearly explained.
Nor do I accept the suggestion that, if Mr Dainton was served with a subpoena, he would be uncooperative out of some sort of unhappiness or discontent. Mr Dainton’s affidavit indicates that he is professional person. He is a Certified Practising Accountant with a Bachelor of Economics and a Master of Business Administration. Mr Dainton has worked in the insurance industry for 30 years. A simple explanation as to why the subpoena was served would be readily understood, particularly by someone who has had significant involvement in litigation involving AMP. Indeed, if he had been served in a timely manner, shortly after the matter was listed for trial, then Mr Dainton may well have been able to accommodate the trial dates without personal inconvenience.
For completeness, it is also good practice, when taking a hearing date, to have the available dates for one’s witnesses. Organising a trial is no easy matter, as there are many components. Most components can be changed, such as the judge and the legal representatives. But the one thing that cannot be changed without potentially changing the outcome of the case is the lay witnesses, being the people that saw, heard or did the relevant things.
On becoming aware that one’s witness is not available to appear at trial (which should not occur if one has made an enquiry as to their availability before taking a hearing date, but does happen), this should be promptly communicated to the parties and the Court, so that alternative arrangements can be made, if possible, including vacating the trial and allocating another hearing date.
If it becomes necessary for a witness to give evidence by AVL from overseas (which should not be necessary if the witness’ availability is sought before a hearing date is taken and their attendance has been secured by the service of a subpoena to give evidence), such an issue should be raised with the parties immediately and, absent agreement, re-listed before the Commercial List Judge. Whilst a trial judge may well hear such an application, the Commercial List does not allocate to trial judges more than a month out from a trial. That may be too late to do fairness to all parties when trying to deal with the problem.

Dealing with s5B(3) at the outset, I am satisfied that it would be in the interests of the administration of justice for the court to make the order sought, in that it would enable the Court to have all of the evidence on which AMP relies in support of its case.
Turning then to whether any of the circumstances described in s 5B(2) pertain, as to s 5B(2)(a) – whether the necessary facilities are available – I was not satisfied that an AVL link via Mr Dainton’s laptop from an air BnB in Sheffield met this description. I am satisfied that the facilities provided by AMP’s London solicitors meet this description. Whilst Chubb submitted that the technological support that could be provided by the London firm at 1.00 am was not something that the Court could have confidence in, I expect that a large London law firm will be able to provide 24-hour support.
As to s 5B(2)(b), I am not satisfied that the evidence can be more conveniently given at trial where, absent an AVL direction, it will not be given at all. But that situation has been brought about by AMP’s failure to serve Mr Dainton with a subpoena to give evidence in a timely manner, and its decision not to do so now. If an AVL direction is not made, AMP will not read Mr Dainton’s affidavit. Indeed, where the insurers require him for cross-examination, AMP cannot read Mr Dainton’s affidavit. That is a consequence of AMP’s own choices.
As to s 5B(2)(c), whether a direction to take Mr Dainton’s evidence by AVL “would be unfair to any party”, the question is not whether it would be unfair to any party not to make the direction, as AMP submitted it would be (albeit that may be a consideration under s 5B(3)). Five matters spring to mind.
First, this case is of high-dollar value, being $300 million.
Second, Mr Dainton’s evidence is important. While other lay witnesses will be called by AMP in respect of the Program, Mr Dainton was the only witness who would give evidence in respect of a particular time period. Making an AVL direction may be unfair to the insurers if it has the consequence that they cannot thoroughly test Mr Dainton’s evidence, particularly given how AMP proposes to deploy that evidence in its case. As I understand it, AMP intends to establish the rigour of the Program, tender a sample of 150 client files remediated in the Program, and ask the Court to infer that all payments made under the Program were based on a reasonable assessment of AMP’s liability (being a requirement of the policy wording). As such, Mr Dainton’s evidence is important indeed.
Third, Mr Dainton’s credit is not in issue. Nor is a translator required.
Fourth, the cross-examination will involve taking Mr Dainton to many documents, including many documents of considerable length. By the resumed hearing of the motion, Chubb had been able to form an estimate as to how long Mr Dainton would be required for cross-examination, being more than one day. Lloyd’s may have some additional cross-examination, but it is likely to be limited.
The parties have agreed that the documents in this case will be dealt with by an electronic Court Book. As such, even if Mr Dainton gave evidence in Sydney, he would be looking at documents on a screen. But experience suggests that looking at documents over a link from the UK will have additional moments of delay, interruption and dislocation which would be lessened if the witness were in the courtroom in Sydney. Further, I consider that the observations made by Stevenson J in Bicheno Investments Pty Ltd v Winterbottom (No 2) [2017] NSWSC 413 hold true, at [34]-[35]:

Fifth, there is a time difference. AMP proposes that Mr Dainton will give evidence starting from 1 am in the morning (his time) and continuing through the wee hours of the morning. As Chubb submitted, a witness giving evidence at 1.00 am in the morning from anywhere had its own problems.
Where Mr Dainton will have been on holiday in Europe for two weeks or so by then, this can be expected to be uncomfortable and exhausting for the witness. This is far from ideal, for any party. Chubb submitted that it did not want there to be any suggestion that, if Mr Dainton did not perform well, any allowance ought be made for him as having been cross-examined over an AVL link or at an inconvenient time of day. AMP undertook not to make such a submission. That does not really solve my problem, of having a witness who cannot necessarily perform their task of giving accurate and complete answers to potentially difficult, taxing and protracted questions on important matters. I am concerned about this.
I consider that it is unfair to the insurers to require them to test Mr Dainton’s evidence via an AVL link from the UK, given the importance of his evidence, the document-heavy nature of the cross-examination and the fact that the witness will be giving evidence for several hours through the night (his time). Given the manner in which AMP seeks to prove its case, by establishing and inviting the Court to draw inferences such that the insurers should be obliged to pay $300 million, I consider that it is unfair to thereby impede the insurer’s ability to properly test Mr Dainton’s evidence.
As to s 5B(2)(d) – whether the witness will not give evidence – I have no power to require Mr Dainton to go down to London and give evidence through the night. The Court would be reliant on his co-operation. That said, I have no reason to think that it would not be forthcoming.
Given that a circumstance described in s 5B(2) exists, I cannot proceed to make the order. If I am wrong about this, then I would not have exercised a discretion in AMP’s favour given the circumstances described in this judgment. I accept Chubb’s submission that no reasonable explanation has been given for this late application. AMP does not appear to have canvassed Mr Dainton’s availability until after a hearing date had been allocated. When told of the trial date, Mr Dainton immediately informed AMP of his plans, but nothing was done at the time, either to move the trial date or to let the insurers know of the difficulty. There was no evidence that Mr Dainton was then asked to move his personal commitments, or that he had tried to do so. AMP had (and has) the means at its disposal to fix this problem, by serving a subpoena to give evidence, but declines to do so.
The admonition in Filby v TEG Live Pty Ltd [2022] NSWSC 1280 bears repetition. The facts were slightly different, but the problem was the same, being “entirely the creation” of the applicant. Slattery J observed at [20]-[21]:

AMP Ltd v Chubb Insurance Australia Ltd (No 2) (evidence by AVL)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

Facts

Subpoenas to give evidence

AVL link

Conclusion

Amendments

21 July 2025

22 July 2025

Parties

Legislation Cited (6)

Cases Cited (5)

Cited By (1)