PROCEDURE – ENDING PROCEEDINGS EARLY – SUMMARY JUDGMENT FOR
DEFENDANT OR RESPONDENT – LIMITATION OF ACTIONS –
where the
defendant provided financial advice to the plaintiff concerning certain
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – ENDING PROCEEDINGS EARLY – SUMMARY JUDGMENT FORDEFENDANT OR RESPONDENT – LIMITATION OF ACTIONS –where thedefendant provided financial advice to the plaintiff concerning certaininsurance policies – where the plaintiffcommenced proceedings against thedefendant alleging a failure to warn of the risks associated with changing
insurance policies –
where the pleaded causes of action were subject to a
six year limitation period – where the defendant applies for summary
judgment
on grounds that the claim is made out of time and is statute barred
– where the plaintiff asserts that time did not start to
run until the
earliest date upon which the entitlement arose to be paid a benefit under the
relevant insurance policies – whether
the claim is made out of time
– whether the claim should be summarily dismissed
PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY OF
DOCUMENTS – UNDERTAKINGS AND USE OF DOCUMENTS – HARMAN
UNDERTAKING
– where the plaintiff used certain documents disclosed in a separate and
related proceeding to commence this proceeding
– where the plaintiff
admits that his use of the documents breached the implied Harman
undertaking – where the plaintiff seeks leave retroactively to
regularise his use of the documents in this proceeding –
where the
defendant seeks summary dismissal owing to the breach of undertaking –
whether the plaintiff has demonstrated “special
circumstances”
– whether the documents have been used for a collateral purpose –
whether the plaintiff should be
relieved from the implied
undertaking
Australian Securities and Investments Commission Act
Aslami v Board of Trustees of the State Public Sector
Superannuation Scheme [2019] FCA 1560, cited
Cheney v Duncan
[2001] NSWCA 197, cited
Commonwealth v Cornwell [2007] HCA 16
(2007) 229 CLR 519, cited
Deputy Commissioner of Taxation v Salcedo [2005] QCA
227
[2005] 2 Qd R 232, cited
Greenhill One Pty Ltd v Dreamtech
Designs Pty Ltd [2019] QSC 20, cited
Hawkins v Clayton (1988) 164
CLR 539, cited
Hearne v Street [2008] HCA 36
(2008) 235 CLR 125,
cited
McArthur v Mercantile Mutual Life Insurance Company Limited [2001] QCA
317
[2002] 2 Qd R 197, considered
McQueen v Mt Isa Mines Ltd
[2017]
QCA 259
[2018] 3 Qd R 1, cited
Melisavon Pty Ltd v Springfield Land
Development Corporation Pty Ltd [2014] QCA
233
[2015] 1 Qd R 476, cited
Northbuild Construction Pty Ltd v
Discovery Beach Project Pty Ltd [2009] QCA
345
[2011] 1 Qd R 145, considered
Om Business Group Pty Ltd v Nestle
Australia Ltd [2021] QSC 183, cited
Palindrome Holdings Pty Ltd v Wass
[2009] NSWSC 797, cited
Shaw v Deputy Commissioner of Taxation
Rablin
v Deputy Commissioner of Taxation [2016] QCA
275, cited
Smits v Cugola & Ors [2022] QCA
262, cited
Springfield Nominees Pty Ltd v Bridgelands Security Ltd
(1992) 38 FCR 217, considered
Tuftevski v Total Risks Management Pty
Ltd [2009] NSWSC 315, cited
Wardley Australia Ltd v State of Western
Australia [1992] HCA 55
(1992) 175 CLR 514, cited
Judgment (85 paragraphs)
[1]
PROCEDURE - ENDING PROCEEDINGS EARLY - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT - LIMITATION OF ACTIONS - where the defendant provided financial advice to the plaintiff concerning certain insurance policies - where the plaintiff commenced proceedings against the defendant alleging a failure to warn of the risks associated with changing insurance policies - where the pleaded causes of action were subject to a six year limitation period - where the defendant applies for summary judgment on grounds that the claim is made out of time and is statute barred - where the plaintiff asserts that time did not start to run until the earliest date upon which the entitlement arose to be paid a benefit under the relevant insurance policies - whether the claim is made out of time - whether the claim should be summarily dismissed
[2]
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY OF DOCUMENTS - UNDERTAKINGS AND USE OF DOCUMENTS - HARMAN UNDERTAKING - where the plaintiff used certain documents disclosed in a separate and related proceeding to commence this proceeding - where the plaintiff admits that his use of the documents breached the implied Harman undertaking - where the plaintiff seeks leave retroactively to regularise his use of the documents in this proceeding - where the defendant seeks summary dismissal owing to the breach of undertaking - whether the plaintiff has demonstrated "special circumstances" - whether the documents have been used for a collateral purpose - whether the plaintiff should be relieved from the implied undertaking
[1] There are two applications before the Court. The first is brought by the defendant in the proceeding which applies, pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), for summary judgment against the plaintiff. The defendant relies upon two grounds:
(b) secondly, on a somewhat novel basis, that "[the claim] was brought in breach of the Harman Undertaking".[1]
[28]
[2] The second application is brought by the plaintiff and is for leave to file, and proceed instanter with, an application for leave to use in this proceeding the documents the subject of the alleged Harman Undertaking breach relied upon by the defendant.
[3] For the reasons explained below, this is not an appropriate matter in which summary judgment ought to be ordered. It is also appropriate that the Court exercise its discretion and grant leave to the plaintiff to, in effect, regularise its use of the documents in this proceeding.
(1) A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.
[31]
(a) the plaintiff has no real prospect of succeeding on all or a part of the plaintiff's claim; and
(b) there is no need for a trial of the claim or the part of the claim;
[32]
the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff's claim and may make any other order the court considers appropriate."
[33]
[5] The rule was considered by the Court of Appeal in Deputy Commissioner of Taxation v Salcedo,[2] in which Williams JA considered the significance of the changes brought out about by the introduction of that rule. At [17] his Honour said:
[34]
"Summary judgment will not be obtained as a matter of course and the judge determining such an application is essentially called upon to determine whether the respondent to the application has established some real prospect of succeeding at a trial; if that is established then the matter must go to trial."
[35]
[6] In Shaw v Deputy Commissioner of Taxation; Rablin v Deputy Commissioner of Taxation,[3] Gotterson JA said at [31]:
[36]
"[31] The content of the test of "no real prospect of successfully defending" set by r 292(2)(a) was considered by this Court in Deputy Commissioner of Taxation v Salcedo. Williams JA (with whom McMurdo P and Atkinson J agreed) quoted with approval the following observations of Lord Woolf MR in Swain v Hillman concerning the English analogue of r 292. His Lordship said:
[37]
"The words 'no real prospect of succeeding' do not need any amplification, they speak for themselves. The word 'real' distinguishes fanciful prospects of success or... they direct the court to the need to see whether there is a 'realistic' as opposed to a 'fanciful' prospect of success."
[38]
[32] Williams JA recalled that in Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq), this Court had cautioned that great care must be exercised to ensure that under the guise of achieving expeditious finality, a party is not deprived of an opportunity for the trial of their case. His Honour also noted that, with particular reference to r 292(2)(b), P D McMurdo J had observed in Gray v Morris that in considering that matter, a court must keep in mind why the interests of justice usually require the issues to be investigated at a trial."
[39]
[7] See also Greenhill One Pty Ltd v Dreamtech Designs Pty Ltd[2019] QSC 20 at [41].
[8] In circumstances where summary judgment is sought on the basis of an allegation that a proceeding has been commenced after the expiration of a limitation period it is as well to refer to the observations of the majority of the High Court in Wardley Australia Ltd v State of Western Australia[1992] HCA 55; (1992) 175 CLR 514 at 533:
[40]
"We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question."
[41]
[9] That is not to say that summary judgment may not be obtained on the basis of an expiration of a limitation period. As Davis J explained in Om Business Group Pty Ltd v Nestle Australia Ltd,[4] there are limits to the facts of a particular case that may reveal it to be a "clear case" in which the limitation period has expired and therefore summary judgment is appropriate.[5]
[10] In Palindrome Holdings Pty Ltd v Wass[6] Davies J approached the question of summary dismissal with the caution expressed by the High Court in Wardley and concluded that summary dismissal remained an appropriate course. His Honour said (at [89]-[92]):
[42]
"[89] Three things should be said about that warning. First, in one sense it merely reiterates that test established by General Steel Industries for determining whether or not the case is appropriate for summary judgement or summary dismissal.
[43]
[90] Secondly, regard must be had to the circumstances in which the statement was made. Limitation questions "of the kind under consideration" in Wardley may well be inappropriate for interlocutory determination. The case not only involved an application for leave to amend the Statement of Claim, but involved questions of when damage first occurred, questions which it was likely would involve issues of fact that could only be properly determined at a trial. So, the warning itself made reference to the fact that in many cases "insufficient is known of the damage sustained by the Plaintiff'. That is not the issue in the present case and, for the reasons I have given, any further factual evidence will go only to the existence of the guarantee and not its terms.
[44]
[91] Thirdly, despite the warning Courts frequently entertain applications for summary dismissal based on limitation defences. Some examples of such cases since Wardley include Cheney & Wilson v Duncan[2001] NSWCA 197 and Samson v Zucker (unreported, Court of Appeal, 11 December 1996).
[45]
[92] I bear in mind the warning given in Wardley in the joint judgement, and I am mindful of the principles in General Steel. However, in my opinion, this is an appropriate case to make an order dismissing the proceedings pursuant to Rule 13.4 UCPR on the basis that the limitation period for the commencement of the proceedings expired before the commencement of the proceedings. In such circumstances, there is no reasonable cause of action within the meaning of the Rules: Hillebrand v Penrith Council [2000] NSW 1058 at 27-29."
[46]
[11] I have approached this application with these principles in mind.
[12] The proceeding was commenced on 19 December 2024 following an application brought by the plaintiff in October 2024 to join the defendant to a different proceeding commenced in the District Court against MLC Ltd and another defendant (the MLC proceeding).
[13] In the MLC proceeding the plaintiff seeks relief to the effect that MLC pay to the plaintiff a Total and Permanent Disablement (TPD) benefit under an insurance policy called the "MLC Insurance (Super)" insurance policy (the MLC policy) maintained by MLC's predecessor in its capacity as trustee of the "Universal Super Scheme", being a superannuation fund of which the plaintiff was a member. The circumstances in which the plaintiff became a member of that superannuation fund, and therefore, potentially, a person to whom the insurance provided under the MLC policy extended, are in issue in the present proceeding.
[14] It is not in dispute that on 13 February 2013, the plaintiff sought and obtained from a representative of the defendant, financial advice relating to planning for his retirement and various insurance protections available to him. At the time the plaintiff sought that advice he was a member of a superannuation fund maintained with Sunsuper and, as a consequence, had the benefit of insurance coverage for automatic group life and TPD under a group policy maintained through AIA Australia Ltd ("the Sunsuper policy").
[15] The plaintiff claims that, in reliance on the advice he had received from the representative of the defendant, he determined to roll over his Sunsuper superannuation account balance to a superannuation fund called MLC Master Key Super Fundamentals ("MLC super fund"), and replace the existing insurance cover that he had through Sunsuper with insurance provided by MLC Life Ltd through the MLC super fund, which included life and total permanent disability cover of:
[47]
(a) $777,206 with a life cover buy back option;
(b) income protection cover of $5,695 per month up to the age of 65 years; and
(c) critical illness insurance cover of $277,206.
[48]
[16] Each of these new insurances carried additional premiums, and was after some additional discussions that the plaintiff agreed to accept reduced cover. That is not relevant for the issue with which the Court is concerned in this application. Also, of passing relevance only, was that certain medical issues were disclosed by the plaintiff in the course of taking out the insurance with MLC such that various exclusions also applied to the new policy.
[17] Whilst it may have been the plaintiff's intention at the time he acted upon the advice and transferred his existing superannuation fund balance held with Sunsuper to the MLC superannuation fund, that no further contributions would be made to his Sunsuper account, by happenstance an employer of the plaintiff made a number of payments into that superannuation fund rather than the MLC superannuation fund. As a consequence, the insurance offered through the Sunsuper policy was re-enlivened to a limited extent.
[18] On 24 April 2015, the plaintiff ceased work in his then employment as a security guard due to illness and made a claim under the MLC insurance policy on the basis that he was "Totally Disabled" and therefore entitled to receive benefits under the income protection component of that policy.
[19] MLC initially accepted the plaintiff's claim under the policy and commenced to make payments. It paid an amount of $23,440.64. However, on 17 June 2016 by letter, MLC notified the trustees of the MLC super fund that it had determined to avoid the income protection and TPD cover under the policy, pursuant to ss 27A and 29(2) of the Insurance Contracts Act 1984 (Cth).
[20] The circumstances and justification for taking such action are disputed by the plaintiff and are the subject of the MLC proceeding in the District Court. The date of 17 June 2016 is critical to the defendant's application. It relies on that date as the date on which the plaintiff's causes of action were complete in the present proceeding, and thus the critical date from which a calculation is to be made under the . The defendant also raises as a secondary argument, an earlier date considered below, which the defendant says the Court should consider to be a date on which those causes of action were also complete.
[49]
"The Plaintiff remained Totally Disabled from 12 October 2015 to 26 February 2017, in that the plaintiff solely due to sickness or injury, was:
[50]
(a) unable to perform at least one of the important duties of his occupation which were necessary to produce his Earnings;
[51]
(b) and not working for Earnings, payment or profit."
[52]
[22] That language replicates the term "Totally Disabled" which is also pleaded.[8] The definition of that term in the MLC policy includes:
[53]
"...the life insured, solely due to sickness or injury, was unable to perform at least one of the important duties of his occupation which were necessary to produce his Earnings, and not working for Earnings, payment or profit".
[54]
[23] Also defined in the MLC policy is the term, "Totally and Permanently Disabled". Without setting out that definition in full, the critical feature is the permanency of the total disablement which relies upon the insured being "completely unable to work at any occupation they were reasonably suited to by way of education, training or experience...". That distinction, the plaintiff says, is important in the context of the present proceeding because the plaintiff does not plead in the MLC proceeding that he became totally and permanently disabled for the purposes of the claims made under the policy the subject of that proceeding.
[24] The distinction in the definition of each term is important and is designed to differentiate between the circumstances in which benefits might become payable under the income protection component of the MLC policy as opposed to the TPD component of the policy.
[25] In 2016, the plaintiff had made a partial recovery from his illness such that he could, and did, work part-time in a different occupation. He then was self-employed from 27 February 2017 to 31 October 2019, at which point his illness returned. From that time the plaintiff ceased all employment and has been unable to return to any occupation.
[26] On about 18 October 2019, the plaintiff lodged a claim under the TPD component of the Sunsuper policy. [9] It also seems that sometime in July 2018, the plaintiff lodged a claim under the TPD component of the MLC policy, but that particular date is not pleaded in the MLC proceeding.
[27] In this proceeding, the plaintiff pleads, and it seems to be uncontested, that the Sunsuper policy did not contain a pre-existing condition exclusion, and that there was also available in the market other insurance cover through other superannuation funds, including a policy called "Care Super's Group Life Policy" (Care Super TPD Policy) offered through The Colonial Mutual Life Assurance Society Limited (CommInsure). By contrast with these policies, the plaintiff pleads that there were various risks associated with taking up the MLC insurance policy through MLC Life Limited on the basis of pre-existing medical conditions, which, had those risks been explained to him, meant that he would not have acted on the advice as he did.
[55]
"After considering all relevant evidence which is reasonably available to Us, We determine that the Insured Member will be unable ever again to be gainfully employed in his or her usual occupation for which he or she is reasonably suited by education, training or experience."
[56]
[34] In the Care Super TPD Policy, the definition of "total and permanent disablement" includes as an option a circumstance where:
"The insured member has, in our opinion, after consideration of medical and/or other evidence become permanently incapacitated to such an extent as to prevent him/her from engaging in any gainful occupation ..."
[35] It is the plaintiff's case that under the Sunsuper policy, AIA only formed its opinion as to the total and permanent disablement of the plaintiff on 27 July 2021, and determined on that date, that the date of disablement was 2 November 2019. On the evidence before me, that allegation seems to be correct.
[36] Further, the plaintiff submits that under his counterfactual, given that AIA would also have been the insurer under the Care Super TPD Policy, then (it is submitted) AIA would also have formed its opinion under that policy at about the same time and made the same determination. That is not something that I can determine now and will need to be proven at trial.
[37] The plaintiff's case is that the critical date from which time starts to run is 27 July 2021, because that is the date that AIA formed (or would have formed) an opinion as to the plaintiff's total and permanent disablement and thus the date on which any entitlement to be paid a TPD benefit under the Sunsuper policy or the Care Super TPD Policy arose.
[38] Alternatively, the plaintiff says that if it was an earlier date, then it is the date from which AIA has determined the plaintiff was totally and permanently disabled, being
[57]
2 November 2019. Either date brings the commencement of this claim within the six year limitation period applicable to each pleaded cause of action.
[58]
[39] It is also important to recall that on the plaintiff's submission there is no evidence before the Court that there was any earlier date on which the plaintiff could have made a claim for total and permanent disablement, as opposed to the claim he did make for total disablement under the income protection policy. The difference, of course, being that in the case of the claim for a benefit under the income protection policy, the plaintiff was unable to continue to perform the particular occupation he was undertaking at the time.
[40] In considering the operative aspect of the policy, namely the need for the insurer to have formed an opinion prior to the entitlement to be paid a benefit being enlivened, the plaintiff relies upon the decision of the Court of Appeal in McArthur v Mercantile Mutual Life Insurance Company Limited[2001] QCA 317; [2002] 2 Qd R 197, and, in particular, the observations of McPherson JA at [9] and [15]. In that decision, his Honour said at [9]:
[59]
"As I see it, an initial difficulty for the plaintiff lies in the form in which the insurance contract, and in particular the definition in para (b)(ii) of Total and Permanent Disablement, is expressed. In Condition 1 (Extent of Cover) the defendant undertakes to pay the Agreed Benefits if an insured person dies or suffers Total and Permanent Disablement as defined. Paragraph (b)(ii) of that definition makes that state of affairs depend on the formation of an opinion on the part of the defendant that the plaintiff is never likely to be gainfully employed, etc. In the absence of that opinion, it is, on the face of it, difficult to see how the plaintiff can succeed in a claim for the sum of $80,000 as an accrued indebtedness. It is only when that opinion is formed that the obligation to pay and consequent indebtedness arise."
[60]
[41] McArthur was a case in which the plaintiff had brought an action for a sum due and payable under a contract of insurance where the evidence was that notwithstanding the terms of the policy, the insurer had, in fact, not formed an opinion at all. In McArthur, the relevant policy provided that the "Agreed Benefits" would be paid if (relevantly) the insured person died or suffered Total and Permanent Disablement. Whether the insured had suffered Total and Permanent Disablement depended on a number of factors, including the insurer being "of the opinion that, as a result of that injury or illness, the Insured Person is disabled or incapacitated to such an extent as to render the Insured Person likely never to be engaged in any gainful occupation..." The absence of an opinion having been formed at all was the central issue on appeal. Muir J at [59] said:
[61]
"...A difficulty with regarding the appellant's claim as a claim for a debt is that the formation of the respondent's opinion is a precondition of the right to payment under the policy. Until the respondent's opinion has been found to have miscarried and until findings are made as to total and permanent disability, no sum can be due to the appellant."
[62]
[42] The plaintiff refers to a number of decisions to like effect including that of Reeves J in Aslami v Board of Trustees of the State Public Sector Superannuation Scheme[2019] FCA 1560 and Smart AJ in Tuftevski v Total Risks Management Pty Ltd[2009] NSWSC 315.
[43] The plaintiff submits that unless and until an opinion is formed, any loss the plaintiff has suffered is contingent. The submission seems to be consistent with the reasoning in Commonwealth v Cornwell[2007] HCA 16; (2007) 229 CLR 519 at [37]- [38].
[44] I am therefore satisfied that having regard to the plaintiff's counterfactual pleaded and the evidence before me, the plaintiff has at least a plausible argument that his cause of action did not accrue until, at the earliest, 2 November 2019, or indeed sometime after that, possibly as late as 27 July 2021. The factual scenario with which I am concerned differs significantly from the facts considered in Palindrome. In that case, it was clear on the pleading that even if the other evidentiary matters were proved, the date of the guarantee on which the plaintiff proposed to move was clear and was clearly out of time.
[45] It follows that I am not satisfied that in the present proceeding, it is so clear as the defendant submits, that the date on which the plaintiff suffered loss was in 2016 so as to enable me to order the summary dismissal of the claim.
[46] The defendant relies on two other arguments in support of its application for summary judgment. The first is a characterisation of loss which arises from an allegation of fact pleaded to the effect that the advice given by the defendant to the plaintiff "was not good value for money", and that the cost of the MLC insurance was disproportionately high compared with other superannuation products. The oral submissions focussed generally on the notion that the premiums that were paid to MLC were higher than the corresponding premiums charged for the Sunsuper policy (or that would have been paid under Care Super TPD policy). As a consequence, it was submitted, the plaintiff should be taken to have suffered material loss at a point even earlier in time than 2016 when the increased premiums were paid or would have become payable. I was not taken to any evidence that supported this submission. In response the plaintiff submitted that the policies were in fact different such that a like-for-like comparison was inappropriate.
[63]
"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. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits..."
[64]
[51] In the course of the hearing, counsel for the plaintiff sought leave to file an application for leave to make use of certain identified documents from the MLC proceeding that had been utilised by him in this proceeding. Counsel for the plaintiff also sought leave to file an affidavit of Hayley Kate Stokes affirmed on 29 July 2025 in support of that application. The defendant opposed leave being granted to the filing and hearing of the application, however the defendant did not identify any particular prejudice it claimed it would suffer if I were to proceed to hear the application. Indeed, the defendant had fully articulated its position with respect to the breach of the Harman Undertaking in its own written outline. Nevertheless, I reserved the question of leave, which I deal with below.
[52] I propose to grant leave to file the application and the affidavit of Ms Stokes filed in support. The issue between the parties has been live for some time and was fully argued in the written outlines of the parties in any event. I asked counsel if there was any authority to which I could be directed which supported the proposition that it was appropriate to summarily dispose of a claim solely because the claim had been commenced utilising documents in breach of the Harman Undertaking. I was not taken to any.
[53] Turning to the documents themselves, there are nine in total identified in the application although the last is properly considered a category rather than a document. Going through them in order: the first is a client profile of the plaintiff completed on 13 February 2013; the second is a statement of advice given to the plaintiff by a representative of the defendant dated 5 March 2013; the third is an authority to proceed signed by the plaintiff on 11 March 2013; the fourth is a request to transfer the whole balance of superannuation benefits signed by the plaintiff on 11 March 2013; the fifth is described as "AdvicePay Authority Form" signed by the plaintiff on 11 March 2013; the next three are emails, the first two of which are between an employee of MLC and a representative of the defendant on 15 and 16 April 2023 concerning the plaintiff and the last email is from the representative of the defendant to the plaintiff dated 13 June 2013. As noted, the final category are file notes of meetings and conversations between the representative of the defendant and the plaintiff that occurred between February 2013 and June 2013.
[65]
"For "special circumstances" to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it 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 for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding."
[66]
[57] Counsel for the plaintiff also emphasised the observations of Vickery J in Ambridge Investments Pty Ltd (No. 3) v Baker[2010] VSC 545 at [34], where his Honour said:
[67]
"Factors beyond a strictly public interest may be present to satisfy the "special circumstances" criterion. Such factors may be circumstances of a private nature, for example where the party who produced the document in one proceeding waived any objection to it being used in another proceeding or expressly or impliedly consented to this course. Or they may be matters in relation to the character of a document, for example where the document in question was already in the public domain and where any semblance of it retaining a private character has been significantly compromised."
[68]
[58] In Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd[2011] 1 Qd R 145, McMurdo P, with whom Muir JA agreed, granted leave in circumstances where the relevant documents had been produced in compliance with a freezing order. The appellant wished to use those documents in cross-examination in the course of an expert determination. McMurdo P said at [17]:
[69]
"Although the builder proposes to rely on the specified documents only to cross-examine the redeveloper's witnesses as to their credit, their credit is central to the key dispute between the parties: whether the written contract was varied by an oral agreement. It is highly relevant that, if the builder is not released from its implied undertaking, its cross-examination of the redeveloper's witnesses (Mr Williams and perhaps Ms English) about the alleged oral agreement could be farcically hamstrung ... It is also relevant that the specified documents are not commercially sensitive..."
[70]
[59] Chesterman JA also agreed with the orders proposed by McMurdo P, but set out separate reasons for why his Honour also considered that the appellant did not, in fact, need leave to use the documents. His Honour, having reviewed the authorities, said (at [38]-[40]):
[71]
"One gleans from this review of some of the authorities 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".
[72]
The scope of the undertaking is, I think, not entirely accurately expressed in the narrower phrase; "for the purposes of that action" or "use in the action in which they are disclosed".
[73]
The wider designation has the support of Mason CJ in Esso and Kirby P in Ainsworth as well as Lord Diplock in Harman. The undertaking will not be broken unless the disclosure which is impugned can be seen to be for a "collateral purpose", or an "ulterior purpose". Both terms indicate some disconnection between the proper conduct of the proceedings or litigation, and the use to which the documents are put."
[74]
"When one comes to answer the question: are documents produced on discovery being used for a purpose unrelated to or unconnected with the proceeding, or litigation, in question or not for a purpose reasonably necessary for the conduct of the litigation? One must analyse what is the litigation or proceeding in question. One should not take any narrow or technical approach to the analysis."
[75]
[61] It is as well to recall that the genesis of this present proceeding was an application brought by the plaintiff to join the defendant to the MLC proceeding. It seemed to be common ground between the parties that due to questions of the operation of the limitation period raised at the time of the joinder application, what in fact occurred was that application was adjourned pending the filing of the claim and statement of claim which commenced this proceeding. Ultimately, the originating application was dismissed by consent. Clearly, this proceeding is connected with the MLC proceeding, and had the joinder application proceeded there would not have been a question of the appropriateness of the use of the documents produced by the defendant in the MLC proceeding by way of notice of non-party disclosure. If one were to take the approach of Chesterman JA in Northbuild, the leave sought by the plaintiff is unnecessary. However, given that the plaintiff did not frame his application in that way, I am not inclined to reach a concluded view about that.
[62] Further, it is also material to observe that each of the documents the subject of the breach are, it was conceded, documents which would be disclosable in this proceeding and, possibly, would have been disclosable pursuant to r 208D of the UCPR. Whilst it was not the subject of evidence before me, the submission was made without objection that the plaintiff had not retained in his possession copies of those documents he had executed himself, and the documents were otherwise documents concerning him, and any matters of privacy arising in the documents only affected the plaintiff.
[63] Having regard to those factors, and whilst it is unsatisfactory that a solicitor would not turn their mind to the manner in which documents have been acquired before determining to utilise them in potentially a separate proceeding, I accept the apology that has been offered to the Court as being genuine and accept also that the use of the documents was nothing more than a mistake. The use of the documents has not caused any material prejudice to the defendant. In the circumstances, it is appropriate that I exercise my discretion and grant leave to the plaintiff to be relieved of the Harman undertaking such that he is permitted to use the documents identified at sub-paragraphs (a) to (i) of the application in this proceeding in the manner he has.
[21] It is relevant to observe that in the MLC proceeding the plaintiff pleads that:[7]
[28] In short, the plaintiff alleges that the defendant was negligent in the advice given upon which the plaintiff says he acted, including by failing to warn of the risks associated with changing insurance policies. The plaintiff also alleges that, in giving the advice it did in the circumstances that it did, the defendant engaged in conduct in contravention of ss 12DA and/or 12DB of ASIC Act and/or s 953A of the Corporations Act.
[29] Each of those causes of action requires damage to have been sustained before the cause of action is complete: Commonwealth v Cornwell[2007] HCA 16; (2007) 229 CLR 519; Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd[2014] QCA 233; [2015] 1 Qd R 476. The loss or damage suffered must be "measurable" as opposed to "negligible": Cheney v Duncan[2001] NSWCA 197; and, as soon as the loss or damage is suffered the cause of action that accrues "covers all subsequent loss and damage which is attributable to the same cause, even if that loss and damage is latent or only manifests by stages": McQueen v Mt Isa Mines Ltd[2017] QCA 259; [2018] 3 Qd R 1 at [70]. The cause of action accrues even if the plaintiff is unaware of that loss or damage: Hawkins v Clayton (1988) 164 CLR 539, 587-588; Melisavon at [28].
[30] Relevantly, each such pleaded cause of action is subject to a six year limitation period, either under s 10(1)(a) of the Limitation of Actions Act or pursuant to ss 12GF(2) and 12GM(5) of the ASIC Act and s 953B(5) of the Corporations Act.
[31] The plaintiff pleads[10] that but for the negligent advice of the defendant (and/or the advice given in contravention of the relevant sections of the ASIC Act or the Corporations Act), he would not have obtained the MLC insurances. Rather, he would have maintained his existing Sunsuper superannuation account, and further, would have dealt with his superannuation fund differently and obtained membership and insurance with Care Super in the form of the Care Super TPD Policy.
[32] In the context of this counterfactual, the question then is at what point in time might it be said that the plaintiff suffered loss?
[33] Working through the series of applicable definitions in the Sunsuper policy, relevantly for this application, where an insured member claims to be totally and permanently disabled they must be "unable to do a suited occupation ever again". The Sunsuper policy requires the satisfaction of several criteria before this definition will apply. One of those is:
[47] Two other things might be said about this submission of the defendant. The first is that the plaintiff does not make any claim for any loss suffered as a consequence of an increase in premiums paid; indeed the evidence is that plaintiff did not pay any premiums directly at all. Rather, they were paid by his trustees. Counsel for the plaintiff submitted that the purpose of this pleaded allegation was linked to later allegations as to misleading and deceptive conduct under the Corporations Act and the ASIC Act.
[48] The second point is that a summary judgment application is not an appropriate forum in which to embark upon a detailed examination of respective benefits under differing insurance policies, which may or may not indicate whether the respective value of premiums paid is good, bad or indifferent. In submissions, I was not invited to compare these insurance policies in any event. I am not prepared to conclude based on the pleadings that it is sufficiently clear that the earliest the plaintiff suffered loss was sometime prior to 2016 when the MLC policy was enlivened such that the Limitation of Actions Act operates to shut the plaintiff out from maintaining this claim.
[49] The remaining argument raised by the defendant in support of its application relied on a concession by the plaintiff that he had used documents disclosed in the MLC proceeding in bringing this present proceeding. The defendant submitted that in so doing the plaintiff had breached his Harman Undertaking and, as a consequence, the defendant should be entitled to summary dismissal of the claim.
[54] Pausing here, it will be immediately obvious that, apart from the two emails between the representatives of MLC and the defendant and the file notes, every document had been seen by the plaintiff in 2013. Whilst the file notes had not previously been seen by the plaintiff, their contents were known to the plaintiff given he was a party to the conversations they purported to record. The other two emails were not the subject of any particular submission by the defendant. I proceed on the basis that they were not confidential nor did their disclosure provide the plaintiff with any particular forensic advantage.
[55] In her affidavit Ms Stokes deposes to the fact that the documents were obtained via the issuance of a notice of non-party disclosure in the MLC proceeding on 20 February 2020. Those documents were then briefed to an expert retained by her firm for the purposes of this proceeding. Ms Stokes says that when the expert was briefed no consideration was given to the use of the documents, by which I understand her to say that no consideration was given as to whether it was proper, prior to leave being granted, that the expert be briefed with the documents. Ms Stokes offered an apology on behalf of her firm and on behalf of the plaintiff to the Court and to the defendant for "the mistaken use of the documents obtained via the [notice of non-party disclosure]".
[56] Both parties identified that it is necessary to demonstrate "special circumstances" before one party will be released from their undertaking. In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd(1992) 38 FCR 217 at [225], Wilcox J said:
[64] Even if I am wrong about the grant of leave I have made, I do not think that the utilisation of the documents in breach of the Harman Undertaking by the plaintiff in bringing this proceeding would justify the summary dismissal of his claim. As I observed, I am unaware of any authority which supports that aspect of the defendant's application in this respect.
[65] Accordingly, the defendant's application is dismissed. I will hear the parties as to costs.