Gavan v FSS Trustee Corporation

1 June 2018 notice to produce

1. On 1 June 2018, MetLife filed its notice to produce pursuant to r 34 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
2. The notice to produce seeks the production by Ms Gavan of: 1. A copy of this Notice to Produce and the notice and declaration completed by you. 2. All 'Records' from your Facebook account, irrespective if it is currently active, de-activated or suspended, from 17 March 2009 to date, irrespective of what 'screen name' you may have used throughout that period. 3. "Records" as used in the notice is to mean and include (but is not limited to) all 'posts', 'status updates', 'check-ins', 'messages', 'photo uploads', 'tagged' photos and comments made by and/or 'tagging' you from 17 March 2009 to date.
3. MetLife notes that the notice to produce calls for Ms Gavan to produce her Facebook records from the date following her cessation of work (that period comprises the time when Ms Gavan alleges she was suffering from the extreme symptoms referred to above); and that the notice provides Ms Gavan with specific instructions from Facebook as to how she is able easily to access and download her Facebook records.
4. That notice to produce was first served on Ms Gavan's then solicitors on 1 June 2018. Shortly thereafter, on 8 June 2018, MetLife was advised that Ms Gavan had ceased to instruct Slater & Gordon Lawyers and had appointed Specialist PTSD and Injury Lawyers (SPIL) to act on her behalf.
5. On 26 June 2018, the solicitors for MetLife, HWL Ebsworth Lawyers (HWLE), served the notice to produce on SPIL and indicated that MetLife would agree to extend the time for compliance with the notice to produce until 9 July 2018, one month before a mediation that had been scheduled to take place on 9 August 2018.
6. On 6 July 2018, SPIL wrote to HWLE indicating that Ms Gavan would not be in a position to comply with the notice to produce by 9 July 2018 and requesting an extension in the time for compliance with the notice to produce.
7. In correspondence dated 19 July 2018 and 25 July 2018, to which there was no response, HWLE requested SPIL to inform it how long Ms Gavan required in terms of an extension in the time for complying with the notice to produce.
8. By letter dated 7 August 2018, MetLife was notified for the first time that Ms Gavan would oppose the notice to produce. It appears that a scheduled 9 August 2018 mediation had by then already been cancelled (on 3 August 2018).
9. On 3 September 2018, Ms Gavan filed her notice of motion seeking to be excused from compliance with the notice to produce. That notice of motion was amended on 14 November 2018. Three main objections have been raised by Ms Gavan to the notice to produce. I deal with those in turn.

Ms Gavan's submissions

1. Ms Gavan contends that no legitimate forensic purpose for the production of the documents sought has been established, applying the test articulated in ICAP Pty Ltd v Moebes [2009] NSWSC 306 (ICAP v Moebes) (approved by the Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307) that it "must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will"; the onus here being on MetLife to satisfy that test. Ms Gavan emphasises that mere relevance is not sufficient; and that what is required is a "reasonable basis beyond speculation" that the documents sought will materially assist the plaintiff's case, as opposed to the mere possibility that the documents, upon inspection, may contain something which might be relevant to that party's case.
2. In this regard, Ms Gavan notes that the request for production is of all records for Ms Gavan's Facebook account for a period of nearly nine and a half years. Complaint is made that there has been no explanation as to how Ms Gavan's Facebook records "could possibly throw light on the issues in the main case", or that the records justify production on the basis that they are "likely to add in the end in some way or other to the relevant evidence in the case".
3. It submitted that, as a result of her Post-Traumatic Stress Disorder (PTSD), Ms Gavan's social interaction with friends and family "has largely become reduced to online exchanges with others on Facebook", something said to be a common occurrence amongst those that have been psychologically injured (but of which there is no evidence before me). In those circumstances, it is said that the request for the entirety of Ms Gavan's Facebook data and metadata from the time her account was incepted or created on the website (being 17 March 2009) would encompass "thousands, if not significantly more, individual pieces of data", including, by way of example, records of every time Ms Gavan has clicked the 'like' button on Facebook, "in response to whatever stimulus might have appeared on her Facebook Feed at that time"; and every instance where Ms Gavan has sent and received messages to third parties "outside of this litigation".
4. Ms Gavan submits that it can be assumed that, if those communications were engaged through Facebook's 'messaging' portal, then the messages were intended to be private "and away from the otherwise open and public sphere that Facebook affords"; and argues that, in the absence of compelling reasons, she is entitled to have her privacy respected and protected.
5. Complaint is made that MetLife has proffered no explanation as to the breadth of its notice to produce and has failed to justify why "each iota of metadata" it seeks is relevant or discloses a legitimate forensic purpose in these proceedings. Ms Gavan submits that the "extraordinary breadth" of the documents sought by the notice to produce makes it difficult to accept that the exercise is anything more than a fishing expedition.

MetLife's submissions

1. As to the complaint based on relevance, MetLife supports the notice to produce both by reference to the primary fact in issue (as to whether Ms Gavan, by virtue of her alleged psychological injury, has become incapacitated to such an extent as to render her unlikely ever to engage in any gainful profession, trade or occupation for which she is reasonably qualified by reason of education, training or experience) and the related issue as to whether the medical experts have been provided with an accurate history regarding the extent of Ms Gavan's symptoms, the true level of her restrictions and the true level of her activities. In addition, it says that the documents sought go to the issue of Ms Gavan's credit.
2. As to credit, it is noted that documents sought by way of notice to produce (by analogy with the position as to subpoenas) are not limited to documents relevant to a fact in issue but may also extend to documents relevant to credit (citing Norris v Kandiah [2007] NSWSC 1296 per Brereton J as his Honour then was, at [3]). MetLife says that, having regard to the similarities between notices to produce under r 34 of the UCPR and subpoenas, a legitimate forensic purpose for the issue of a notice to produce is to obtain access to documents which are apparently relevant to the issues in the proceedings or to provide a legitimate basis for cross examination (referring to A v Z [2007] NSWSC 899 per Brereton J at [19]; Malick v McGeown [2008] NSWSC 129; Taylor v O'Neil [2012] NSWSC 626; Commissioner of Police v Hughes [2009] NSWCA 306 at [90] per Young JA (Ipp JA and Handley AJA agreeing)).
3. As to the relevance of these documents to the primary fact in issue, MetLife argues that the limited amount of publicly available information which Ms Gavan had published on her Facebook account (that is contained in the report by ConsilAD) regarding her activities is inconsistent with the symptoms Ms Gavan reports (and which she alleges prevent her from ever returning to the workforce) and with the histories she has provided to the medical practitioners (MetLife noting that these inconsistencies go to: the extent to which Ms Gavan is capable of interacting with members of the public; the extent to which Ms Gavan is capable of travel; and the extent to which Ms Gavan is able to engage in social/public activities).
4. It is, thus, submitted that the documents set out in the notice to produce are very likely to be relevant to the primary fact in issue in the proceedings; and that the Facebook material could rationally affect the assessment of whether or not the histories Ms Gavan has provided to her treating practitioners and the assertions in her affidavit evidence as to why she is unlikely to ever return to work, are accurate (matters which it is submitted go to the heart of the proceedings and the credibility of Ms Gavan's case that she is entitled to the TPD benefit).
5. In this regard, MetLife points to TAL Life Ltd v Shuetrim, MetLife Insurance Ltd v Shuetrim [2016] NSWSCA 68 (Shuetrim) and Hellessey v MetLife Insurance Limited [2017] NSWSC 1284 (Hellessey), in both of which proceedings Facebook documents were accepted as being of relevance to the matters there in dispute.
6. In Shuetrim, where there was an issue as to whether a claimant, relying upon a psychological injury, met the same TPD definitions under the same Policies upon which Ms Gavan relies upon in the present proceedings, Leeming JA concluded at [198] that "there was ample basis for evaluating critically whether what Mr Shuetrim said in his affidavit and his statement about his capacity to return to relevant work should be taken at face value, or alternatively be discounted by reference to much of the medical and psychological opinions as well as to his own Facebook posts" and said that the appropriate finding by the primary judge should have turned upon an evaluation of all of the evidence. See also the reference by his Honour (at [207]) to the evidence of Mr Shuetrim's Facebook posts and his cross-examination as confirming that at least in some respects, namely his "ability to deal with people, to drive a vehicle, to attend crowded venues", Mr Shuetrim had exaggerated his claims and that, to the extent that the history provided by Mr Shuetrim was exaggerated, the psychiatrists' opinions had proceeded on an incorrect premise. MetLife submits that the documents sought under its notice to produce are likely to be of similar relevance in the present case.
7. In the Hellessey proceedings, at an interlocutory stage, White J (as his Honour then was) dismissed with costs an application by the plaintiff to set aside a subpoena for production of Facebook records, observing that, where publicly accessible material from Facebook (obtained before access to the relevant page was precluded) was said materially to assist the defence, it was on the cards that material to which the defendant did not have access would do so as well (see the transcript contained in Annexure N to the affidavit of Mr Gawthorne (T 6.17-19)); again a situation that MetLife says here applies. MetLife notes that in Hellessey, that decision was made before completion by the insurer of its assessment of the plaintiff's TPD claim in that case. Further, MetLife notes that in the final determination of the plaintiff's claim in Hellessey (at [964]), Robb J accepted that people "can make admissions on Facebook no less than any other form of medium, and that once a statement has been made it may be taken to be real evidence".
8. Thus, MetLife argues that the Facebook material here sought by it is clearly relevant to the matters in dispute and to the ultimate decision of the Court.
9. MetLife next submits that the notice to produce complies with the requirement to describe and identify with reasonable particularity the documents which are required to be produced; noting that a notice to produce need not call for the production of "specific documents" but, rather, need only "cut the documents out from the universe of documents by some description or specification" (referring to what was said in Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 (Patonga Beach) per Barrett J (as his Honour then was) (at [11]-[13])).
10. MetLife further accepts that a notice to produce under r 34.1 of the UCPR must not put the recipient in a position whereby the recipient is required to make a judgment as to the legal effect of a document or its capacity to prove something (see Patonga Beach at [15]); and therefore should not ask the recipient to produce documents by reference to a particular subject matter, such as, for example, the existence of a particular fact (see Patonga Beach at [14]) but says that in the present case the notice to produce does not require Ms Gavan to make any judgment as to the legal effect of the documents sought or the extent to which those documents might be used to prove a particular fact; in that it does not require her to produce documents which only relate to a particular subject matter (which would require her to form any judgment) and hence does not infringe the general principle stated in Patonga Beach in this regard.
11. Finally, insofar as Ms Gavan also asserts that the notice to produce ought be set aside because it is too broad and would involve Ms Gavan producing material which she says she is entitled to protect and keep private (noting here the submission by Ms Gavan that, in the absence of compelling reasons, she is "entitled to have her privacy respected and protected by the Court''), MetLife submits that this provides no basis for setting aside the notice to produce and notes that a similar objection was unsuccessfully advanced on behalf of the plaintiff before White J in Hellessey. Further in this regard, MetLife points to the confidentiality principles to which parties to litigation are subject.

Determination

1. The principles as to the requisite legitimate forensic purpose to sustain the issue of a subpoena or notice to produce are well known. I considered them in Rinehart v Rinehart [2018] NSWSC 1102 (see from [43]ff).
2. Relevantly, for present purposes, in ICAP v Moebes, Nicholas J said (at [33]) that determining the legitimate forensic purpose of a subpoena necessarily depends upon identification of the case which is likely the documentation will assist.
3. In the present case, I have referred to the issues raised on the pleadings as to Ms Gavan's mental health and the severity of the symptoms of her Condition that she claims render it unlikely that she will ever be able to return to work. I consider that the categories of documents sought by the notice to produce have obvious relevance to the principal issue in dispute (as well as potential relevance to the issue as to the credit of Ms Gavan), insofar as they are likely to shed light on the veracity of the claimed severity of her symptoms of the Condition diagnosed by her doctors and ,hence, the weight that can be placed on the opinions expressed by the medical experts.
4. The submission as to the breadth of the notice to produce in terms of the volume of material to be produced cannot sensibly be tested in circumstances where there is no evidence as to how prolific or otherwise a user of Facebook Ms Gavan has been over the relevant period but in any event it appears that there is a relatively simple way in which the material can be produced and then the relevance of that material should readily be apparent (on the assumption that the messages are not particularly long or complex - as might be expected of Facebook messages). The issue as to Ms Gavan's symptoms, as is the effect of those symptoms on her ability ever to return to work, is squarely raised on her pleaded case and it is not unreasonable in my opinion for MetLife to seek to test that by reference to information sourced from Ms Gavan's Facebook messages or the like. The complaint as to an invasion of Ms Gavan's privacy is, in effect, met by the same response. Moreover, MetLife accepts that confidentiality principles will operate in respect of the documents produced in answer to the notice to produce.
5. As to the complaint that the "extraordinary breadth" of the notice to produce amounts to a fishing expedition, a helpful explanation of that term may be found in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, at 254, where it was said: A "fishing expedition", in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the Court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere "fishing expedition".
6. Whether a party has cause to believe that particular documents exist is a relevant factor (in conjunction with the potential relevance of the documents sought and the breadth of the subpoena) in determining whether the subpoena is oppressive and/or constitutes "fishing". In the present case, the documents obtained from the publicly available content of Ms Gavan's Facebook account clearly give cause to believe that there will be documents on her private account that will shed light (whether in support or otherwise) of her claims as to the severity of her symptoms over the relevant period. True it is that the notice to produce calls for documents over a lengthy period but it is reasonable to expect that if there were to have been improvement (or deterioration) of Ms Gavan's mental condition and symptoms over this period of time then this would be reflected in her Facebook account. Were MetLife to have sought to limit the documents by way of category (such as documents recording or referring to social activities in which Ms Gavan has participated or which she has attended), it might be that the complaint would be that this would impermissibly call for a judgment to be formed as to the content of the material, or that the exercise of calling that material would be oppressive.
7. I consider that MetLife has established a legitimate forensic purpose for the issue of the notice to produce; and that it is neither too broad in its terms nor a fishing expedition. I would not, therefore, set aside the notice to produce on this first ground. (That said, it would be sensible for the parties to consider whether a regime for production of the documents might be agreed in order to limit the volume of documents required to be produced in the first instance; it may be, for example, that instances where Ms Gavan simply posted a "like" on other people's Facebook accounts or pages might sensibly be excluded from the documents required to be produced at least at this stage, assuming that this would not add significantly to the cost of production. I leave that to the parties to explore, noting that their legal representatives owe professional obligations to the Court to conduct litigation in accordance with the overriding mandate imposed by s 56 of the Civil Procedure Act 2005 (NSW) for the just, quick and cheap resolution of the real issues in dispute.)

The Collateral Purpose / Abuse of Process Objections

1. I consider the next two grounds of objection together, as they are both largely based on the fundamental proposition that use of the documents sought by the notice to produce in order to assist in the consideration of Ms Gavan's TPD claim would be a breach of the Harman undertaking.

Ms Gavan's submissions

1. Ms Gavan submits (though as noted earlier MetLife disputes this) that MetLife's intention is not to utilise Ms Gavan's Facebook records to assist its defence of these proceedings; rather, that it intends to use the Facebook records in its determination of the TPD claim and that this is an independent, administrative decision-making process, separate to these proceedings. That is the essence of the abuse of process here identified by Ms Gavan (namely, that MetLife is using, or seeking to use, the notice to produce process in order to obtain documents for the "ulterior" or "collateral" purpose of processing and determining the TPD claim, which she maintains is distinct and separate to these proceedings).
2. Ms Gavan on that basis asserts that the notice to produce falls into a recognised category of abuse of process, namely the abuse of process arising when "the court's procedures are invoked for an illegitimate purpose". In this regard, it is noted that, in the absence of the present proceedings, MetLife would not otherwise be able lawfully to obtain Ms Gavan's (private) Facebook records and would be obliged to make its determination based on the evidence obtained by it over the past three and a half years. (In that last submission would appear to lie the nub of Ms Gavan's real complaint - namely, that MetLife may be able to obtain information from her Facebook accounts from which to base a determination not to admit her claim.)
3. Ms Gavan's first complaint under these grounds of objection is, thus, the assertion that MetLife's notice to produce has not been served for the bona fide purpose of obtaining evidence relevant to the principal action.
4. Ms Gavan argues that the defendants are obliged to continue to process her claim and to make a determination of the claim; and that the procedural fairness process (commenced with the issue of the Procedural Fairness Letter) is separate to the litigation and should be completed without reference to documents obtained by invoking the compulsory process of this Court. It is noted that the issue of the Procedural Fairness Letter was not the result of orders or directions by the Court.
5. In oral submissions it was further suggested that there was an abuse of process by MetLife by reference to its delay in making of a decision (which it is suggested was for the purpose of waiting for proceedings of the present kind to be instituted - so as then to enable use of the Court's processes to obtain documents) (T 11.1ff). It is submitted that if the Court were to find in favour of allowing MetLife to obtain the further documents and to utilise those documents in determining the TPD claim (as opposed to utilising them for the purposes of the litigation), there would be a significant advantage to insurers such as MetLife in not making prompt determinations and instead waiting for litigation at which time it could obtain documents and other material (to which it would have no entitlement "pre-litigation"). It is said that "[i]n reality, an insurer in these circumstances would obtain a strategic benefit in simply waiting for litigation to be commenced in order to be rewarded by being able to obtain documents that it would otherwise not be entitled to during the claim processing phase byway of vehicles such as [a] notice to produce" (see [41] of Ms Gavan's supplementary submissions).
6. Even if (as MetLife here says it does) MetLife does intend to use the documents at a later stage for the defence of the proceedings, Ms Gavan's contention is that MetLife's intended use of the documents for the purposes of the determination of her TPD claim would still breach the implied Harman undertaking.
7. Ms Gavan takes issue with the statement in MetLife's supplementary submissions of 6 March 2019 to the effect that the Harman obligations do not preclude it from using documents produced in the litigation in forming its opinion under the relevant policies of insurance as to whether she is totally and permanently disabled. Ms Gavan submits that MetLife is and remains subject to the implied undertaking; and that the Harman obligation precludes MetLife, without the Court's leave, from utilising documents produced by compulsion of the Court, regardless of the type of claim which is the subject of the litigation.

MetLife's submissions

1. MetLife submits that this is not a case where use of the documents would contravene the Harman undertaking. In that regard it refers to Northbuild Constructions Pty Ltd v Discovery Beach Project Pty Ltd (No 4) [2011] 1 Qd R 145; [2009] QCA 345 (Northbuild) and, in particular the reasoning of Chesterman JA (in obiter) to which I refer below.
2. In Northbuild, relevantly, what was being considered by the Queensland Court of Appeal was a situation where, in a dispute that had been referred out of the Court for expert determination after freezing orders had been obtained in the Court by the appellant builder in relation to certain assets held by a developer, leave had been granted to permit the builder to refer to the freezing orders during cross-examination of certain witnesses. The freezing orders had been made subject to an express undertaking that the builder "not publish the terms or substance of this order to any person except the [developer]". The relevant issue on appeal was whether the undertaking that had been given precluded the builder from impugning the credit of the developer's officers in the substantive dispute by cross examining them as to their alleged role in breaches of the freezing orders by the developer.
3. McMurdo P, with whom Muir JA agreed, proceeded on the basis that using the freezing order material in the expert determination would breach the undertaking. (MetLife says, in this regard, that the Court was there bound to do so as the case had been fought on that basis.) Chesterman JA, who agreed with the orders proposed by McMurdo P, nevertheless considered in obiter dicta, that there was a basis for concluding that the appellant did not need leave to use the documents for the cross-examination" (see at [25]).
4. His Honour considered that what a party to litigation may not do with documents produced pursuant to compulsive processes is to utilise them for purposes unconnected with the litigation, or unrelated to it or for a purpose not reasonably necessary for the conduct of the litigation but went on to say that "[t]he scope of the undertaking is … not entirely accurately expressed in the narrower phrase, 'for the purposes of that action' or 'use in the action in which they are disclosed'" (at [39]).
5. His Honour concluded that: in order to determine whether a proposed use of protected documents is unconnected with, unrelated to or not for a purpose reasonably necessary for, the conduct of the litigation, it is necessary to analyse the litigation not in a manner constrained by "any narrow or technical approach" (at [47]); and that the scope of the Hearne v Street obligation is that documents produced under compulsive curial process may only be used for a purpose connected with or related to the determination of the dispute in which the parties are engaged and to assist in the resolution of the dispute in which the documents were required.
6. At [50], his Honour stated that: The scope of the undertaking may be better expressed by saying that documents produced on discovery or other compulsive process may only be used for a purpose connected with or related to the determination of the dispute in which the parties are engaged and to assist in the resolution of which the documents were required. Such a formulation extends to the determination of disputed rights other than by trial.
7. Counsel for MetLife invokes and relies on Chesterman JA's observations in Northbuild for the proposition that, where documents are obtained under subpoena or by some other means in the litigation, the parties are not necessarily precluded from using them for a purpose that is not strictly the conduct of the litigation provided that it has the necessary connection or relation to that litigation.
8. Reference is made by MetLife in this regard to the decision in Deputy Commissioner of Taxation v Karas [2012] VSC 143, where the Deputy Commissioner sought to use material generated in freezing order proceedings against the defendant taxpayer for the purposes of separate proceedings (namely, proceedings to enforce an existing judgment debt and further Administrative Appeals Tribunals proceedings in the nature of reviews of the Deputy Commissioner's assessments). Forrest J in the Victorian Supreme Court considered the approach of Chesterman JA to be "persuasive" and held that the Deputy Commissioner's proposed use of the freezing order materials satisfied the test articulated by his Honour in Northbuild.
9. MetLife places weight on the following matters in submitting that Chesterman JA's reasoning should here be followed: first, that the policy definition of TPD requires Ms Gavan to provide proof to MetLife's satisfaction that she has become incapacitated to the requisite extent; second, that, in making her claim, Ms Gavan provided MetLife with wide ranging authority to investigate her personal circumstances and to obtain information about her from third parties (that authority concluding with her written acknowledgement that without such information MetLife "may not be able to assess, investigate or pay (her) claim"); and third, that the case pleaded in the amended statement of claim is that, in breach of its duty to her and under the contract of insurance with FSS Trustee Corporation, MetLife failed in a timely fashion to form the opinion that Ms Gavan was totally and permanently disabled. MetLife points to the remedies sought by Ms Gavan (including the declaratory relief sought as to the wrongfulness at law and in fact of the constructive declination" of her claim; and orders that MetLife specifically perform the contract by determining the claim according to law and pay to FSS Trustee Corporation the benefit she claims together with interest thereon (relief characterised by MetLife as inconsistent, though nothing here turns on the correctness of that characterisation).
10. MetLife argues that it is commonplace for proceedings of this nature to be commenced prior to the insurer forming its opinion and for the plaintiff's claim to continue with minor amendment following the insurer making the determination. (It is not necessary here to form any view on this.) MetLife also notes that, while it may ultimately form the opinion that Ms Gavan is not totally and permanently disabled, it may also form the view that she is (the latter being an outcome which would resolve the substantive dispute as to whether or not Ms Gavan is entitled to a TPD benefit).
11. MetLife emphasises that, insofar as Ms Gavan has made a claim under her superannuation scheme for TPD benefits, this requires the insurer to determine whether she satisfies the policy TPD definition; and that (as noted above) Ms Gavan has authorised MetLife to obtain prima facie confidential personal information for this purpose.
12. MetLife further notes that Ms Gavan makes a separate claim in these proceedings, in respect of which (unless MetLife ultimately forms the opinion that she is totally and permanently disabled), Ms Gavan must necessarily seek a finding by the Court that she satisfies the TPD definition in the relevant Policies; for the purposes of which claim the parties are entitled to utilise the Court's compulsive procedures to establish their respective positions on that issue.
13. MetLife, thus, submits that this is a case where the parties are engaged in two parallel processes for resolution of the one dispute involving a common central issue; and that, in circumstances where MetLife seeks to use personal information acquired from documents produced under the curial process to enable it to form its opinion on that very issue to resolve that very dispute, MetLife's purpose falls squarely within Chesterman JA's formulation of a legitimate purpose (namely one connected with or related to the determination of the dispute in which the parties are engaged and to assist in the resolution of which the documents were required).
14. In these circumstances, it is submitted that the use of documents produced under the curial process of these proceedings for purposes of MetLife forming its opinion as to whether the plaintiff is totally and permanently disabled is not a purpose collateral or extraneous to these proceedings in breach of the Hearne v Street obligations.

Determination

1. The implied undertaking principle is that "where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence" (see Hearne v Street at [96]; Harman; British American Tobacco Australia Services Ltd v Eubanks (2004) 60 NSWLR 483; [2004] NSWCA 158). The House of Lords in Hearne v Street unanimously held that the implied undertaking attaches to any document produced or received during legal proceedings, and that this undertaking operates to prevent the use of the documents for a "collateral or ulterior" purpose. Lord Keith described the implied undertaking (at 308) as being: … independent of any obligation existing under the general law relating to confidentiality. It affords a particular protection accorded in the interests of the proper administration of justice. It is owed not to the owner of the documents but to the court, and the function of the court in seeing that the obligation is observed is directed to the maintenance of those interests, and not to the enforcement of the law relating to confidentiality.
2. As Ms Gavan emphasises in the present applications, it has been held that the purpose of the undertaking is to protect the privacy of the person disclosing (under compulsion) the relevant document and thereby to encourage full and frank disclosure during litigation (see British and American Tobacco Services Ltd v Cowell (No 2) (2003) 8 VR 571 at [20]; [2003] VSCA 43; and Riddick v Thames Board Mills Ltd [1977] QB 881 (Riddick), where Lord Denning reasoned that the restriction on the use of documents utilised or produced during legal proceedings was due to the compulsion under which those documents were obtained). In Riddick, Lord Denning explained (at 896) that: Compulsion is an invasion of a private right to keep one's documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The court should, therefore, not allow the other party - or anyone else - to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice. … In order to encourage openness and fairness, the public interest requires that documents disclosed on discovery are not to be made use of except for the purposes of the action in which they are disclosed. They are not to be made a ground for comments in the newspapers, nor for bringing a libel action, or for any other alien purpose.
3. It should also be noted that the implied undertaking applies not only to the documents as utilised in legal proceedings, but also to the information contained in or derived from those documents, "whether it be embodied in a copy or stored in the mind" (Crest Homes Plc v Marks [1987] AC 829 at 854).
4. The implied undertaking has been characterised as an obligation; a duty; a formula; a rule; or a principle (see Alterskye v Scott [1948] 1 All ER 469 at 470-471 per Jenkins J; Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756 at 764; [1991] 3 All ER 878 at 885; Harman at 308). The general principle, as stated by Hayne, Heydon and Crennan JJ in Hearne v Street at [96], is that: Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.
5. The principle applies to documents not only produced on discovery but also produced under subpoena (Eltran Pty Ltd v Westpac Banking Corporation (1990) 25 FCR 322; Northbuild); and I accept that notices to produce and subpoenas are analogous and should be treated as such.
6. Both parties in the present case agree as to the existence of an "implied undertaking" to the court arising in respect of documents obtained as a result of compulsion through court processes (and, thus, that this would include documents produced in answer to the present notice to produce), namely that those documents will only be used for the purposes for which they were disclosed, and not for collateral or ulterior purposes. MetLife, however, argues, as noted above, that "these obligations do not preclude it from using documents produced in the litigation in forming its opinion under the relevant policies of insurance as to whether the plaintiff is totally and permanently disabled" because this purpose is not a collateral or extraneous purpose (see [4] of its supplementary submission).
7. In oral submissions, Counsel for MetLife formulated the relevant question as being whether, "in conformity with its undoubted obligations as a litigant", MetLife could "use documents produced in the proceedings for purposes of the litigation" (T 24.39ff). It was submitted that, in keeping with the obiter dicta of Chesterman JA in Northbuild, the relevant material to be produced should be understood as "to do with resolving the one dispute" (T 26.43), albeit one in respect of which there are two parallel processes involved.
8. "Ulterior" or "collateral" purpose in this context has been described in the case law interchangeably as: a purpose outside of the proceedings; a purpose other than the proceedings; an extraneous purpose; and an alien purpose. In Zuckerman on Australian Civil Procedure (Adrian Zuckerman et al., (LexisNexis Butterworths Australia, 2018)) (Zuckerman) the process of establishing the relevant purpose of obtaining and using the documents is referred to as the 'purpose of proceedings test'. According to the authors of Zuckerman, the 'purpose of proceedings test' allows "not only use in the very proceedings in which discovery is granted, but also uses that can legitimately be regarded as flowing from the purpose of the original proceedings" (my emphasis) (at [15.188]).
9. Further, the authors of Zuckerman note that the test is flexible, permitting the use of disclosed documents "for a variety of purposes that go beyond, but are closely connected to, the proceedings in which the relevant disclosure was made" (at [15.190]; and that the test may "be expanded to a test that says that documents obtained in discovery may be used for the purpose for which the order was made, namely the purposes of that litigation then before the court between those parties" (at [15.189]).
10. I consider that, in the circumstances of the present case, use of the documents produced under the notice to produce (or under any earlier subpoena issued in the proceedings for that purpose), in order for the insurer to consider and make a determination as to Ms Gavan's claim to a TPD benefit will not infringe the Harman undertaking because it is not use for a purpose unconnected with the litigation in the course of which the documents have been required to be produced. Ms Gavan seems to have accepted that there are two processes "at play" (determination by the insurer of her claim and then, if refused, determination by the Court of her claim), in a context where she has pleaded that the failure to determine the claim to date amounts to a constructive declination of the claim, but she maintains that they are separate and distinct processes (the former, being distinct from and outside the curial process).
11. I consider that this approaches the question in too narrow and technical a way (to adapt the language used by Chesterman JA in Northbuild). I accept that there are parallel processes but I see them as connected in the sense that the documents sought will inform and be relevant to the same primary issue. The administrative process (of the insurer determining whether to its satisfaction the TPD definition in the Policies has been met in the present case) is not divorced from the claim to be determined by this Court if the insurer's determination is not in favour of Ms Gavan; and the same material has the capacity to inform both processes. The interconnectedness of the two processes is reflected by the potential for dispute arising from the likely difficulty of MetLife divorcing, from its consideration of Ms Gavan's TPD claim, information already gleaned from the present conduct of its defence of the proceedings instituted by Ms Gavan (noting that, as observed above, the principle extends beyond the documents themselves to use of the information contained in the documents). The potential for dispute down the track, if it be asserted that some information obtained through the compulsive processes of the Court was used improperly for the determination of Ms Gavan's TPD claim (particularly in circumstances where there has hitherto been apparent consent to the use of such information for those purposes), highlights the connection between the two processes.
12. As to the proposition that MetLife has in some way improperly delayed its determination of Ms Gavan's claim (so as to amount to an abuse of process) in order to achieve a forensic advantage (as I understand the submission, in the expectation that a constructive declination claim would be brought and it could then invoke the compulsive processes of the Court), there is no evidence to support the conclusion that there has been an intentional abuse of process in this case. Nor do I accept that permitting MetLife to enforce production under the notice to produce would encourage other insurers to engage in an abuse of the processes of the Court of the kind of which Ms Gavan here accuses MetLife. The fact that MetLife has become aware of certain material that sheds light on the veracity of Ms Gavan's claims and evidently wishes to be in a position to make its ultimate determination with the benefit of as complete information as possible is something for which it should not be criticised.
13. Accordingly, I do not accept that the issue of the notice to produce was an abuse of process nor do I accept that use of the documents to be produced under the notice to produce for the purposes of considering and determining the TPD claim would be in breach of the Harman undertaking and I do not set aside the notice to produce on these grounds.
14. For completeness, I note that, had I formed the view that the use of the documents to be produced for the purpose of considering and determining the TPD claim would be in breach of the Harman undertaking, I would still not have set aside the notice to produce - rather, I would have ordered production and deferred consideration of the application for leave to use some or all of the documents to a later date (for the reasons I set out below).

Ms Gavan's application to set aside consent orders

1. The above disposes of the application by Ms Gavan to be excused from production of the documents in answer to the notice to produce issued by MetLife. However, what remains to be considered in respect of her amended notice of motion is the application to set aside the consent order made on 16 February 2017.
2. Ms Gavan seeks an order setting aside Order 4 of the orders made by consent on 16 February 2017 on two grounds: first, that she did not consent to the order (her present solicitor's evidence being that this order was consented to by her former lawyer without instructions and without notification or explanation to her); and, second, on the basis that the order should not properly have been made by consent without a proper examination or adjudication by the Court.
3. As to the first ground, Ms Gavan relies on the second affidavit affirmed on 1 February 2019 by her solicitor, Ms Nadia Rahman, which sets out in detail the circumstances leading up to the making of the orders by the court on 16 February 2017 (see at [11]-[36]). Ms Gavan submits that not only did she did not receive any advice as to the legal implications of consenting to Order 4 of the consent orders but also that she never gave instructions to her former solicitor to consent to those orders generally (and, specifically, to Order 4). It is submitted that the reasons for the consent by Ms Gavan's former solicitor (without instructions) to the order remain unexplained, despite attempts to obtain instructions from Ms Gavan's former lawyers in this issue.
4. As to the second ground, it is submitted that the order was otherwise not properly made, having been made in chambers by the Equity Registrar following the exchange of proposed orders by MetLife to Ms Gavan which were then emailed to the Equity Registrar. It is acknowledged that the Equity Registrar was invited by the legal representatives of the parties to make the orders by consent; and that it is not uncommon for consent orders to be sought by such a process. However, it is submitted that in the present circumstances there is a real question as to whether such an order can be made by consent and without the formality of the court conducting a proper examination of the reasons for the waiver of the implied undertaking.
5. Ms Gavan notes in this regard that the power to dispense with the implied undertaking rests with the Court and is discretionary; and that the party seeking to be released from the Harman undertaking must seek leave of the Court to do so, citing Brennan J in Esso Australian Resources v Plowman (1995) 183 CLR 10; [1995] HCA 19, where his Honour noted: that such an undertaking "can, in appropriate circumstances, be released or modified by the court" (55); and that the dispensing power is not freely exercised (56), but that it will be exercised when special circumstances appear (57). Ms Gavan emphasises (and MetLife does not cavil with this) that the duty to observe the implied undertaking is one owed to the Court and that it is for the Court to control, modify or release a party from the implied undertaking (see Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 (Hamersley Iron) per Anderson J); hence the parties cannot merely consent to waive the implied undertaking alone (see Hamersley Iron per Ipp J (as his Honour then was)).
6. MetLife does not oppose the setting aside of the relevant consent order but seeks leave in relation to the use that has already occurred in respect of documents that have already been obtained (at least some of which were used in the Procedural Fairness process) under the compulsory processes of the Court.

Determination

1. Neither in her amended notice of motion, nor in submissions made on her behalf, did Ms Gavan identify the power sought to be invoked by her in order to set aside the consent order relating to use of the documents obtained under the compulsory processes of the Court. I have proceeded on the assumption that she is here invoking the inherent jurisdiction of the Court (or perhaps the general power to set aside a judgment or order pursuant to r 36.15 of the UCPR) on the basis of irregularity - in circumstances where the order was made without a formal adjudication of the application for leave.
2. In the present case I am satisfied that it is appropriate to set aside the consent order. In so doing, I am not to be taken as making any finding that there was error on the part of the Equity Registrar to make the order by consent in the first place. The Equity Registrar was entitled (when consent orders were provided by the parties inviting orders to be made in chambers) to assume that Ms Gavan's lawyers were acting on her instructions and with her informed consent; and it would not have been unreasonable for the Equity Registrar to have concluded that experienced litigants in this Court had understood the ramifications of the Harman undertaking and had properly considered there to be a basis on which leave to dispense with that undertaking should be granted. That said, I am not privy to the details of the making, or consideration in chambers, of that application and it is not necessary here to speculate about this (particularly in circumstances where there has been no application for review of the Registrar's decision and there is no opposition to the order now being set aside).
3. It is now apparent from the evidence filed on the present application that Ms Gavan was not properly apprised (or perhaps did not simply understand - if, contrary to her instructions to her present lawyers, she was at some time consulted about this issue or else had given her previous lawyers blanket instructions for the conduct of the litigation) the ramifications of consenting to such an order. It would appear that those ramifications may only have been brought home to her when she realised what she would be required to produce under the MetLife notice to produce, but nothing turns on this.
4. Relevantly, however, there is nothing to suggest that MetLife was aware of any lack of authority at the time for the giving of consent to the now impugned order and it is a relevant factor to note that MetLife would reasonably have understood that once the order was made it was permitted to act in accordance with that order.
5. In those circumstances, the appropriate course in my opinion is to make an order setting aside Order 4 of the consent orders made on 16 February 2017 but noting that any use by MetLife of documents falling within the scope of Order 4 that would otherwise have been in breach of the Harman undertaking (or would otherwise not have been authorised) is to be deemed to have been authorised (so as to make clear that MetLife cannot be said to have acted, in the period from 16 February 2017 to date, with respect to such documents in breach of the Harman undertaking or otherwise inappropriately in breach of any confidentiality principle by reason of their use in the proceedings or in connection with its consideration of Ms Gavan's claim).

MetLife's application for leave to use the documents to form its opinion

1. Finally, MetLife has sought leave, in the event that it were to be found that the proposed use of documents acquired under curial compulsion for the purposes of determination of Ms Gavan's TPD claim is impermissibly extraneous to these proceedings, to use documents so obtained for that purpose, both retrospectively (in relation to the documents already produced) and prospectively (in relation to those to be produced). Although I have determined that MetLife is not precluded by the Harman undertaking from so using the documents, in the event that this conclusion were to be incorrect I now deal with MetLife's application for leave.
2. The decision as to whether or not to grant leave is discretionary and is informed by whether or not "special circumstances" exist (see Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283) (Liberty Funding). In Liberty Funding the Full Court of the Federal Court of Australia at [31] said: The notion of "special circumstances" does not require that some extraordinary factors must bear on the question before the discretion will be exercised It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined.

MetLife's submissions

1. In addition to the submissions made by it in relation to the Harman undertaking as to the matters already considered above, MetLife points to the fact that well before it issued the subject notice to produce, documents had been generated in the proceedings in the form of affidavit evidence of Ms Gavan and files produced under subpoena by various third parties (principally Ms Gavan's treating medical practitioners), which litigation documents were used on behalf of MetLife to brief its qualified clinical psychologist (Mr Dino Cipriani) who produced a report dated 16 April 2017, and that this report was, in turn, the subject of comment by Ms Gavan's qualified clinical psychologist (Mr Peter Rawling) in his report dated 26 September 2017. It is noted that there was reference to, and comment upon, these documents in the Procedural Fairness Letter issued to Ms Gavan and which was the subject of comment by Ms Gavan's then solicitors in their letter dated 16 April 2018 to MetLife.
2. It is submitted (and I accept) that, in these circumstances, the parties have proceeded on the mutual assumption that litigation documents could be considered both in the litigation itself and in the parallel process whereby MetLife forms its TPD opinion. MetLife submits that it could not, practically speaking, banish those documents from consideration and that it should not be required to do so. Further, it is submitted that the notion that an insurer in its position should form its opinion on a body of material which is "patently incomplete and lacking relevant documentation" is untenable and that for Ms Gavan to promote such an outcome is a breach of her duty of good faith.
3. Thus, MetLife argues that (while it does not concede that it requires leave to use the litigation documents for the contemplated end) if leave is required, then in the events that have occurred leave ought be granted to MetLife in the terms sought by its notice of motion.

Ms Gavan's submissions

1. As to MetLife's motion for leave filed 6 March 2019 for the implied undertaking to be waived, Ms Gavan emphasises that the requirement for parties to litigation to observe the implied undertaking is a substantive legal obligation, citing Riddick for the proposition that the public interest in privacy and confidence demands that this compulsion should not be pressed further than the administration of justice requires.
2. Ms Gavan notes that the implied undertaking given on documents produced under compulsion will not be released or modified save in "special circumstances" and that the onus is on MetLife to demonstrate that such special circumstances exist in this matter (to justify the exercise of discretion in favour of granting a release from the implied undertaking). Ms Gavan contends that MetLife has not discharged its onus in this regard, with reference to its supplementary written submissions. In particular, it is submitted that MetLife has not: identified, with specificity and precision, the documents which are sought to be released from the implied undertaking; nor has it identified, with specificity, the purpose for that modification and release.
3. Reference is made to the statement by Vickery J in Ambridge Investments Pty Ltd v Baker (No 3) [2010] VSC 545 (Ambridge Investments) at [39]-[43] that: [I]t is necessary, as a first step, to specify the documents in respect of which the modification or release is sought. It is then necessary to identify the purpose of the modification or release. The character of the document and its potential importance in the second proceeding will often be critical to the determination as to whether "special circumstances" exist. Further, the character of the document will assume importance in the exercise of the court's discretion, assuming the "special circumstances" threshold is satisfied. … Consequently, it is necessary for the individual document or piece of information in respect of which the modification or release is sought, and the purpose for that modification and release, to be clearly identified: Visy Board v D'Souza. It is not sufficient to merely identify categories of documents which are said to be the subject of the application, without identifying the specific documents and the specific purpose of the modification or release is sought …
4. Ms Gavan says that the order sought by MetLife does not specify any documents (much less the character of those documents) and does not characterise the documents by "categories of documents" (which, in any event, she says would not be sufficient to satisfy the special circumstances threshold). It is submitted that the order is "broad, all-inclusive, and far-reaching" and that it seeks the use of any documents produced under compulsion in the proceedings, for an ulterior or collateral purpose. Further, complaint is made by Ms Gavan that the purpose for the release is identified by MetLife in only the most general sense.
5. Ms Gavan submits that the "blanket waiver" now sought by MetLife is wholly inconsistent with, and contrary to, the purpose of the implied undertaking, and the special circumstances in which the undertaking can be waived; that the implied undertaking serves to jealously guard the private and public interest in protecting the confidentiality of a person's private documents; and that the Court must therefore be satisfied that the circumstances afford good reason and are of sufficient gravity to release the undertaking for the documents in question. Reference is made to the statement of Vickery J in Ambridge Investments to the effect that, without identification of the documents, it is impossible to apply the necessary test. Accordingly, it is submitted that, in the absence of identifying the documents, the Court cannot ascertain whether the "special circumstances" test is enlivened and MetLife's notice of motion must fail.
6. By reference to Springfield Nominees Pty Limited v Bridge Lands Securities Limited (1992) 38 FCR 217 (Springfield Nominees) (see below at [120]), Ms Gavan submits that the intention of the "special circumstances" threshold is to require a party in the position of MetLife to show good reason why, contrary to the usual position, it should be allowed or entitled to use the documents produced under compulsion in these proceedings. Ms Gavan submits that, to the extent that MetLife asserts that it requires the Court's leave to modify the implied undertaking "for the purpose of forming its opinion under the policies the subject of these proceedings as to whether the plaintiff is TPD", this argument is "misconceived" in circumstances where MetLife already has, in its possession, a significant volume of material, which it has utilised to issue the Procedural Fairness Letter. It is said that, for MetLife now to say that it cannot form its opinion without the use of documents otherwise protected by the implied undertaking, is inconsistent with the position it took in the Procedural Fairness Letter (that in its opinion there is material adverse to Ms Gavan's contention that she is TPD) and that the suggestion that this is a necessary step to form its opinion is also contrary to the manner in which insurance claims of this nature are determined. It is submitted that insurers are "always obliged to form opinions on claims without the assistance of documents discovered in proceedings" and therefore that this does not qualify as "special circumstances".
7. Ms Gavan submits that the Court cannot consider whether there are, in fact, special circumstances here, given that MetLife seeks leave to use "limitlessly" any documents which have or may later come into existence at a later time by way of curial compulsion, to assess the TPD claim "seemingly without discrimination".
8. Accordingly, Ms Gavan asserts that MetLife fails to satisfy the special circumstances threshold. Ms Gavan submits that that the generality of the "waiver" order sought by Ms Gavan in its motion, which is couched to include indeterminate documents during the whole life of the litigation, is contrary to the essence of the reason for and seriousness of the implied undertaking. (Further, Ms Gavan asserts that MetLife's practice of seeking waivers of the implied undertaking by way of consent, through the Equity Registrar, is not a practice that should continue nor be condoned by the Court.)

Determination

1. In circumstances where an implied undertaking arises, and an issue as to compliance with that undertaking arises (or leave is sought to dispense with the obligations thereunder), the Court must consider: whether the purpose for obtaining the documents falls within the purpose of the proceedings; and/or whether, as a question of fact, special circumstances exist which make it appropriate for the court to exercise its discretion and release a party from the undertaking (see Springfield Nominees). The authorities have recognised that the dispensing power is not freely exercised, and will only be exercised where special circumstances appear (see Hearne v Street at 159-160); and it is recognised that deciding whether special circumstances have been made out involves a balancing exercise. Whether special circumstances can be established is a question of fact and requires consideration of: the nature of the documents and the information contained within; the circumstances under which the documents came into existence; the policy underlying the implied undertaking as to use of the documents for the purpose of the proceedings in which they were produced; other relevant factors; and whether the needs of justice are better served by relieving from or maintaining the undertaking (Springfield Nominees at 225; Wellness Pty Limited v Hamilton-Bond [2002] NSWSC 1259 at [8]; Premier Travel Pty Limited v Satellite Centres of Australia Pty Limited [2004] NSWSC 864 at [2]).
2. In Liberty Funding, the Full Court of the Federal Court noted with approval the considerations that had been identified by Wilcox J in Springfield Nominees as relevant to the exercise of the discretion, as including: • the nature of the document; • the circumstances under which the document came into existence; • the attitude of the author of the document and any prejudice the author may sustain; • whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain; • the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information); • the circumstances in which the document came into the hands of the applicant; and • most importantly of all, the likely contribution of the document to achieving justice in the other proceeding.
3. Circumstances that may make it appropriate for the court to exercise its discretion and release a defendant from the undertaking (and, thus, allowing the disclosure and use of the documents) include: that the documents are not entering the public domain and access will be limited; that the documents are to be used in order for the defendant to substantiate the claim of the plaintiff under a policy (see Woolworths Limited v Lawson [2002] NSWSC 985 (Woolworths v Lawson)); and that public interest considerations warrant disclosure of the documents (in the sense of ensuring that only those eligible for the benefit obtain it).
4. In Woolworths v Lawson, access to documents by an insurer was permitted for the purpose of the insurer substantiating the claim made by Woolworths under its insurance policy. The Court placed emphasis on the fact that access to the documents was conditional upon the person who was to receive the documents filing in court an undertaking as to confidentiality prior to provision of the documents (at [10]).
5. In Prime Finance Pty Limited v Randall [2009] NSWSC 361, the plaintiffs were granted leave to provide affidavits, annexures and exhibits to an officer or officers of the New South Wales Police Force for the purpose of reporting the possible criminality of several defendants and other persons mentioned in the relevant documents. The suspected crimes were offences of dishonesty, including obtaining a financial advantage by deception. Emphasis was placed on the fact that it was in the public interest to facilitate the police investigation (at [44]). His Honour held (at [47]) that the plaintiffs had demonstrated that: there are circumstances in this case which take the matter out of the ordinary course (Holpitt Pty Limited v Varimu Pty Limited (1991) 29 FCR 576 at 579); and that "[g]ood reason" has been shown why the order sought should be made (Liberty Funding at [31]).
6. In the present case, the difficulty I have with MetLife's application for a broad release of the Harman undertaking (on the assumption, contrary to the conclusion I have reached, that a Harman undertaking arises in relation to documents to be produced under the notice to produce) is that the application for leave to be released from the Harman undertaking does not specify which particularity the documents in respect of which the release is sought. While that is not surprising since there has so far been no production pursuant to that notice to produce, it means that I am not in a position to assess matters of the kind identified by Wilcox J in Springfield Nominees (such as the nature of the document, the circumstances under which it came into existence, any prejudice the author might sustain, the nature of the information in the document and, most importantly, the likely contribution of the document to achieving justice in this proceeding).
7. I do not accept that a blanket waiver would be appropriate. Therefore, had I not considered that the proposed use (for the purposes of determining the TPD claim) was a use that was not prohibited by the Harman undertaking I would have adopted the course of permitting the notice to produce to stand (and requiring production of the documents by Ms Gavan), allowing inspection by MetLife (perhaps with a suitable confidentiality or limited access regime) and then requiring any application by MetLife for leave to use particular documents to be made (supported by affidavit(s) identifying the particular documents or classes of documents and the matters relied upon to support the contention that special circumstances exist to warrant the release of the undertaking in relation to those documents). I have adopted a similar course in other proceedings (see for example Findex Group Ltd v iiNet Ltd [2018] NSWSC 1567, though there the application for leave to be released from the implied Harman undertaking was not at that stage pursued).
8. In that regard, if documents produced in answer to the notice to produce revealed or tendered to reveal inconsistency in the claim put forward by Ms Gavan, there would be a reasonable basis to argue that special circumstances existed for the disclosure of the documents in the proceedings (along the lines, for example, of the reasoning in Sapphire (SA) Pty Ltd (trading as River City Grain) v Barry Smith Grains Pty Ltd (in liq) [2011] NSWSC 1451), though it may be that on the particular circumstances of the present case (as they might ultimately emerge) a different conclusion would be reached in relation to particular documents. I make no finding in that regard.
9. Where I do consider that there are special circumstances that would have warranted the grant of "blanket" leave would relate to the use of documents already produced under subpoena in these proceedings, in light of the consent order made on 16 February 2017 permitting such use. However, I have dealt with that issue in the context of the application to set aside the consent order, so nothing further need here be done to protect the position in that regard.
10. Accordingly, the appropriate course at this stage is simply to dismiss the application for leave to be released from the Harman undertaking (with no order as to costs), since it has no work to do in light of the conclusion reached above as to the inapplicability of such an undertaking.

Orders

1. For the above reasons, I make the following orders: 1. Set aside Order 4 of the consent orders made on 16 February 2017 (but noting that any use by the defendants of documents falling within the scope of Order 4 that would otherwise have been in breach of the implied Harman undertaking or not authorised for any other reason shall be deemed to have been authorised). 2. Dismiss the amended notice of motion filed by the plaintiff on 14 November 2018 with costs. 3. Dismiss the notice of motion filed 6 March 2019 by the second defendant with no order as to costs. 4. Order the plaintiff to comply by 30 June 2019 with the notice to produce issued by the second defendant on 1 June 2018.

Amendments 11 September 2019 - 'Cases cited' references have been amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2019