AMP Ltd v Chubb Insurance Australia Ltd; (s 50 summary)

Legislation Cited: Evidence Act 1995 (NSW), ss 50, 47.

Cases Cited: Botany Bay City Council v Minister for Planning and Infrastructure (No 2) [2014] NSWLEC 101
In the matter of Great Southern Managers Australia Ltd v Gunns Plantations Ltd [2011] VSC 380
In the matter of Idylic Solutions Pty Ltd v Hobbs [2012] NSWSC 568

Category: Procedural rulings

Parties: AMP Ltd (1st Plaintiff)
AMP Services Ltd (2nd Plaintiff)
AMP Advice Holdings Ltd (3rd Plaintiff)
Akumin Financial Planning Pty Ltd (formerly AMP Financial Planning Pty Ltd (5th Plaintiff)
Hillross Financial Services Ltd (7th Plaintiff)
Charter Financial Planning Ltd (12th Plaintiff)
Chubb Insurance Australia Ltd (1st Defendant)
XL Insurance Co SE (2nd Defendant)
AIG Australia Ltd (3rd Defendant)
Berkshire Hathaway Speciality Insurance Co (4th Defendant)
Zurich Insurance Public Ltd Co (5th Defendant)
Lloyd’s Syndicate No 4711 (6th Defendant)
Lloyd’s Syndicate No 2786 (7th Defendant)
HCC International Insurance Co Plc (8th Defendant)
Liberty Mutual Insurance Co (9th Defendant)
Lloyd’s Syndicate No 1218 (10th Defendant)
AIG Europe SA (11th Defendant)
Lloyd’s Syndicate No 1861 (12th Defendant)
Lloyd’s Syndicate No 1274 (13th Defendant)
Markel International Insurance Co Ltd (14th Defendant)
Arch Insurance (UK) Ltd (formerly Arch Insurance Co (Europe) Ltd (15th Defendant)
Axis Specialty Europe SE (16th Defendant)
Lloyd’s Syndicate No 1955 (17 Defendant)
Lloyd’s Syndicate No 3210 (18th Defendant)
Lloyd’s Syndicate No 1886 (19th Defendant)
Lloyd’s Syndicate No 1183 (20th Defendant)
Lloyd’s Syndicate No 2015 (21st Defendant)
International General Insurance Co (UK) Ltd (22nd Defendant)
Endurance Specialty Insurance Ltd (23rd Defendant)
Allianz Australia Insurance Ltd (24th Defendant)
Lloyd’s Syndicate No 4000 (25th Defendant)
CNA Insurance Co Ltd (26th Defendant)
Lloyd’s Syndicate No 2232 (27th Defendant)
Lloyd’s Syndicate No 2007 (28th Defendant)

Representation: Counsel:
J Giles SC/J Burnett/S Danne/K Sharma (Plaintiffs)
A Munro SC / A Smith (1st, 2nd Defendants)
S Donaldson SC / M Lyons (10th, 12th-23rd, 25th-28th Defendants)
PM Knowles SC (3rd-8th Defendants)
R Carey (9th, 24th Defendants)
Solicitors:
Herbert Smith Freehills Kramer (Plaintiffs)
Colin Biggers Paisley (1st, 2nd Defendants)
HWL Ebsworth (10th, 12th-23rd, 25th-28th Defendants)
Wotton+Kearney (3rd-8th, 11th Defendants)
Lander & Rogers (9th Defendant)
Moray & Agnew (24th Defendant)

File Number(s): 2022/121767

JUDGMENT

1. HER HONOUR: By motion filed on 8 July 2025, the plaintiffs (AMP) sought to present evidence of the contents of some 395 lever-arch folders of documents in the form of a summary under s 50 of the Evidence Act 1995 (NSW).

2. The admissibility of the summary was disputed by the 28 defendants (the insurers), who are legally represented in four groups: the first and second defendants (Chubb), the third and co-represented defendants (AIG), the ninth and co-represented defendant (Allianz) and the tenth and co-represented defendants (Lloyd’s).

3. Since the motion was filed, some progress has been made:

(a) AMP has revised the proposed s 50 summary, in an effort to address various matters raised by the insurers. (b) More significantly, AMP has identified specific documents in the 395 lever-arch folders which it seeks to tender, reducing the proposed tender to some 16 lever-arch folders. (c) The insurers have agreed that they will not submit that AMP has failed to discharge its burden of proof in relation to the occurrence of an omission on the basis that AMP has not tendered the whole file, albeit the insurers do not thereby admit the fact of the alleged omission.

4. To explain, the last-mentioned ‘piece of progress’ deals with AMP’s proposed tender of an entire client to prove a negative, being that no advice was given. The insurers, effectively, accept that it is not necessary to do this. Given the insurers’ agreement to this course, AMP now rely on the first portion of the summary (Item 1) as an aide memoire only.

5. As to whether the balance of the revised s 50 summary should be admitted, AMP relied on the evidence of solicitor Katharine Cahill. Lloyd’s relied on the evidence of solicitor Craig McIver. Additional legal correspondence was tendered. I was also provided with one of the many client files sought to be summarised, to illustrate the task undertaken.

Section 50, Evidence Act

6. Section 50 of the Evidence Act provides:

50 Proof of voluminous or complex documents

(1) The court may, on the application of a party, direct that the party may adduce evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question.

(2) The court may only make such a direction if the party seeking to adduce the evidence in the form of a summary has—

(a) served on each other party a copy of the summary that discloses the name and address of the person who prepared the summary, and

(b) given each other party a reasonable opportunity to examine or copy the documents in question.

(3) The opinion rule does not apply to evidence adduced in accordance with a direction under this section.

7. Section 47(1) of the Evidence Act defines “d****ocument in question” as “a document as to the contents of which it is sought to adduce evidence”.

8. A ‘summary’ for the purposes of s 50 need not summarise the entire contents of the documents in question but the evidence sought to be extracted from the documents: In the matter of Great Southern Managers Australia Ltd v Gunns Plantations Ltd [2011] VSC 380: at [67] (Davies J). But a summary may not meet the requirements of s 50 if it interprets the contents of the underlying documents, involves the application of an exercise of judgement, is a submission or gives expert opinion: In the matter of Idylic Solutions Pty Ltd v Hobbs [2012] NSWSC 568 at [83], [91], [97] and [102] Ward J (as the President then was).

9. In Botany Bay City Council v Minister for Planning and Infrastructure (No 2) [2014] NSWLEC 101, Beech-Jones AJ (as his Honour then was) considered that Ward J’s observations in Idylic should be treated with some caution where, at [12]:

“It is self-evident from s 50(3) that the mere fact that a summary might involve some opinion does not, of itself, mean that the section cannot be invoked. Were it otherwise there would be no reason to exempt the application of the opinion rule from the operation of s 50.”

10. While his Honour noted that the proposed summary considered by Ward J in Idylic involved the author “exercising a significant level of judgment” as to its content (at [10]), Beech-Jones AJ continued at [13]:

“However, questions of fact and degree are involved. There must be a point at which the level of exercise of any judgment or subjective opinion in the formulation of the alleged summary means that what is really being adduced is not, in fact, a true summary of the contents of two or more documents. In some cases the determination of this may be a matter of form rather than substance.”

11. By way of comparison, in Idylic, ASIC sought to adduce evidence of the contents of over 6,000 documents by two summaries: one prepared by an ASIC investigator and the other by the liquidator of the managed investments schemes which were the subject of the proceedings. The summary prepared by the ASIC investigator was generally acceptable, save that some of the spreadsheets seemed to incorporate calculations based on material that was not evident on the face of the underlying documents: at [86]. Greater difficulty was encountered with the summary prepared by the liquidator, who included a commentary or explanation of his summary (which her Honour treated as a submission) and drew conclusions from the documents as to whether certain deposits should be treated as investments, involving the application of judgment. That portion was not admissible under s 50 either.

12. In Botany Bay City Council, the summary compiled details of approved developments, which were said to be non-compliant with a design code. The author of the summary identified each apartment on the approved plans, together with the apartment size, the number of bedrooms, the type of apartment (corner, cross-through or single aspect) and which of the 15 types of apartments identified in the design code it was. Where the type of apartment under the design code was not clear, the author attempted to categorise the apartment. Notwithstanding that this involved an element of judgement, Beech-Jones AJ admitted this portion of the summary. However, the author proceeded to state whether the apartment complied with the design code or SEPP 65. His Honour rejected those portions of the summary, which were treated as a submission.

Consideration

13. It is fair to say the AMP’s proposed summary bears stronger similarities to the summaries sought to be tendered by ASIC in Idylic than the list of apartments in Botany Bay City Council. But the short point is that, AMP having reduced its proposed tender from 395 lever-arch folders to 16 lever-arch folders, it is no longer the case that “it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question”: s 50(1). In significant Commercial List litigation, of which this case is clearly one, such a volume of material is routinely digested by this Court.

14. But, beyond this, the proposed summary does stray into interpretation of the documents in question, expressions of opinion or submissions. Turning to the proposed s 50 summary, AMP’s solicitors have reviewed some 150 client files. The solicitor has then provided a response to the following questions:

| 2 | Summary: File information | | 2.1 | Is the file available? | | 2.2 | Does the file contain adviser records? | | 2.3 | Does the file contain a copy of release terms? | | 2.4 | Are the release terms signed by the client? | | 3 | Summary: Remediation outcome | | 3.1 | Does the file contain one or more documents recording the reason for and | | 3.2 | What is the reason for remediation recorded in that document or documents? | | 3.3 | Items for which compensation was paid | | 3.4 | Amount of remediation | Total, comprising: | | 3.4.1 | | (a) Inappropriate advice | | 3.4.2 | | (b) No service conduct, comprising | | 3.4.2.1 | | (i) Ongoing Service Fees where services not provided | | 3.4.2.2 | | (ii) Lost earnings and interest on | | 3.4.3 | | (c) Amounts other than inappropriate advice or no service conduct (including adjustments) | | 3.5.1 | If remediation was paid for inappropriate advice, is there evidence of a remediation process having considered: | The financial outcomes of the client’s actual financial position as a result of the Inappropriate Advice? | | 3.5.2 | | The client’s financial position had appropriate advice or service been provided? | | 3.5.3 | | The above two matters in determining the compensation? | | 3.6.1 | If remediation was paid for no service conduct: | Was there either a written agreement evidencing an obligation to pay ongoing service fees in connection with an ongoing service or was there evidence of payment of ongoing service fees and no evidence of a service identified? | | 3.6.2 | | If the answer to 3.6.1 is “Yes (written agreement)”, in what year(s) was that agreement made? | | 3.6.3 | | If the answer to 3.6.1 is “Yes (written agreement)”, did the review record that it had identified that a service had been provided to the client in respect of that agreement / in that year? | | 3.6.4 | | Was the remediation paid pursuant to a finding that the client was charged ongoing service fees in circumstances where the review did not identify evidence that the client received a service? | | 3.6.5 | | Was the remediation calculated on the basis that the client was to be put back in the position they would have been had the payment of fees (in return for no service) not occurred? | | 3.6.6 | | Did the client receive an amount equal to the service fees that they paid during the relevant service period? | | 3.6.7 | | Did the client receive an amount to account for missed investment earnings or interest on the service fees referred to above? | | 4 | Summary: Review process | | 4.1 | Was the reason for remediation determined by an initial reviewer? | | 4.2 | Was the reason for remediation reviewed and approved by second-level | | 4.3 | Was the amount of compensation determined by an initial reviewer? | | 4.4 | Was the amount of compensation reviewed and approved by second-level | | 4.5 | Does the file contain a record that the reviewer corresponded with the client |

15. Question 3.5.1 involves an exercise of judgement by the person reading the client file and a conclusory statement following upon that exercise of judgement: does the client file contain “evidence of a remediation process having considered” various matters when “determining the compensation?”. The summary does not purport to summarise the contents of the documents in question in a way illustrated in the case law. Rather, the answer provides the solicitor’s view as to whether the contents of the file demonstrate that these matters have been considered and taken into account. This involves the exercise of judgement or may be regarded as a submission or, perhaps, an expert opinion. In short, the summary contains a legal assessment by the solicitor reviewing the file.

16. The same may be said for question 3.6.1, which asks the solicitor to say whether they consider that there is “evidence” of particular matters in the client file. Even more problematic is question 3.6.5, which asks whether “the remediation calculated on the basis that the client was to be put back in the position they would have been had the payment of fees (in return for no service) not occurred”. To answer that question “yes” or “no” does not involve the summary of the contents of a document, but the solicitor’s assessment as to how the AMP officer considering remediation, and the amount of remediation, went about their task.

17. Where AMP proposes to tender the 16 lever-arch folders in any event, I consider that the proposed summary should not be admitted under s 50. The document can certainly be put before the Court as an aide memoire. I note that the insurers are prepared to continue to work towards agreement in respect of some portions of the document. This may well be a work in process as the trial progresses. For these reasons, the plaintiffs’ Notice of Motion filed on 8 July 2025 is dismissed.

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Amendments

21 July 2025

Coversheet: amendment to representations

21 July 2025

Coversheet: amendment to representations