Plaintiff v Defendants

3 Prior to the hearing, following conferral pursuant to my Order of 25 October 2024, the parties agreed upon most of the items in the draft list of issues.

4 The draft list, totalling 43 items, includes issues that are applicable to the claims by the plaintiff only (being non-common questions) and other questions that are applicable to the claims by the plaintiff and all group members (being common questions).

5 At the hearing on 6 December 2024, oral argument was directed to those aspects of the draft list that remained in dispute. The argument proceeded by reference to a table annexed to the plaintiff's submissions that helpfully set out the agreed and disagreed issues and referred briefly to the parties' competing arguments. For some items on the draft list of issues, the parties had agreed on part of the wording and disagreed on the balance of the wording, or otherwise had agreed the wording but disagreed as to whether the issue was a common question or a non-common question.

6 I was able to rule on some disputed items in the draft list of issues during the course of the hearing. I determined to reserve my decision concerning others of the disputed items.

7 It is convenient to set out my ruling on the disputed items in the draft list of issues in tabular form with the inclusion of an column stating my decision and, where I reserved my decision, including a very brief explanation for that decision. Where I determined the contested issue in the course of the hearing the relevant parts of the transcript are noted. Where relevant, reference is made to paragraphs in the further amended statement of claim dated 18 October 2021 ('FASOC').

8 I have not published detailed reasons. The identification of common questions for trial involves a matter of practice and procedure. As John Dixon J said recently in Nathan v Macquarie Leasing Pty Ltd:[1]

... orders identifying the common questions to be determined at an initial trial are interlocutory and may be revised and adapted. It is common practice for an interlocutory list of common issues to be revisited and settled in relation to their precise terms in the context of all of the facts and circumstances.

9 In Nathan,[2] his Honour set out the principles to be applied:

1. I will briefly state the principles applicable to the exercise I have undertaken:

(a) It is critical for the orderly conduct of group proceedings that prior to commencing the initial trial there is specificity about what common questions are being determined.

(b) Deferral of this process impedes the efficient and fair conduct of the initial trial and invites later difficulties in identifying which findings determine common issues of law or fact to bind all group members having regard to the operation of s 33ZB of the Supreme Court Act 1986 (Vic).

(c) On the other hand, it is accepted that orders identifying the common questions to be determined at an initial trial are interlocutory and may be revised and adapted. It is common practice for an interlocutory list of common issues to be revisited and settled in relation to their precise terms in the context of all of the facts and circumstances revealed by the evidence, usually before final submissions are received.

(d) In Merck, the Full Federal Court recognised that where there is controversy about the common issues, it is desirable to structure the trial by identifying what might be the common issues for determination and if it becomes apparent from the evidence and the submissions (at trial) that the questions were not common, then they would not be determined.

(e) The exercise of identifying common questions in advance of trial is one of case management that should not be weighed down in technical argument and which does not preclude any party from raising in due course any point in favour of or against a common question, provided that it properly arises in the proceeding.

(f) I agree with observations of some other judges that the fact that it might ultimately be determined that a disputed common question cannot be answered at the initial trial because it emerges during that trial that the answer requires consideration of fact and circumstances peculiar to individual group members is not a reason for not posing that common question in the first place. Further, the fact that there is a possibility that a determination of a question may lead to answers that, in their application to each group member, are still fact-specific, will not deny its character as a common question.

(g) A flexible approach to this exercise is consistent with ss 7 and 10 of the Civil Procedure Act 2010 (Vic) given the substantial impact on court resources that occurs when group proceedings go to trial. It is desirable that the Court ensures that as many questions of law and fact having a degree of commonality as possible are decided, for the benefit of the trials at the second stage.

(h) The Court has a valuable power to require the identification of issues in a proceeding under s 50 of the Civil Procedure Act.

10 I have proceeded by reference to the principles referred to by his Honour when determining the disputed items on the draft list of issues.

11 The table below includes shorthand references to a number of cases. The key cases to which reference is made are the decisions of the High Court in Self‑Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd,[3] the Full Federal Court in Merck Sharp and Dohme (Australia) Pty Ltd v Peterson[4] and Beach J in Stack v AMP Financial Planning Pty Ltd (No 2)[5].

12 The table below is limited to the disputed items. The solicitors for the plaintiff should compile a single document that comprises the agreed items in the list of issues and those issues upon which I have ruled, and file and provide to my Chambers a copy of that document by no later than 4:00pm on 20 January 2025.

Were the Add-On Insurance products ('AOIPs') aptly to be characterised as 'complex' financial products? [15.a]

Defendants: This is not a question of fact or law and it does not arise as an element of any cause of action. There is no controversy as to the terms of the AOIPs. The attribution of an adjective such as "complex" is just a matter of characterisation of the underlying facts as to the terms of the AOIPs.

Plaintiff: The issue is squarely raised on the pleadings. The characterisation of whether the products were complex is relevant to: (i) the Court's assessment whether communications about them were, in the circumstances, apt to mislead the target audience; and (ii) the adequacy of training of Dealers.

Were the Add-On Insurance products complex financial products for protecting against the risks identified in the policy terms?

Transcript of proceedings, Anderson-Vaughan v AAI Limited & Ors (No 2) (Supreme Court of Victoria, Delany J, 7 December 2024): 3-4.

What were the exclusions, exceptions and limits to the AOIPs that were material to defining the circumstances in which the policies would respond? [15.b]

What were the exclusions, exceptions and limits to the Add-On Insurance products that significantly limited the circumstances in which the policies would respond?

Transcript of proceedings, Anderson-Vaughan v AAI Limited & Ors (No 2) (Supreme Court of Victoria, Delany J, 7 December 2024): 4-5.

a. by itself, by operating the MTAI Sales System; or

b. by the Dealers as its representatives or agents;

engage in conduct that was intended to influence the Plaintiff and Group Members to acquire AOIPs within the meaning of section 766B(1) of the Corporations Act 2001 (Cth) ('Corporations Act')? FASOC, [20]

Plaintiff: This issue is agreed, but not its application. The plaintiffs contend that it is a common question; the defendants disagree. Given that the plaintiff advances a systems case, as is evident from the particulars, the question is capable of resolution on a common basis.

Defendants: The questions that the defendants have objected to are questions which do not concern features of an over-arching sales system, but which necessarily descend to consideration of the conduct of individual Dealers towards individual customers.

The parties agree upon the issue but not upon its application. The plaintiff submits it should be a common question. The defendants object to the question because it does not concern an overarching sales system, but necessarily descends into a consideration of the conduct of individual Dealers towards individual customers. Noting the factors discussed by John Dixon J in Nathan at 2 (d), (f) and (g) the draft question is appropriate for inclusion as a common question at this time.

a. could the amount of commission payable to the Dealer in respect of the AOIPs be negotiated by the Plaintiff and Group Members?

b. Was it the experience of AAI that customers negotiated the amount of commission payable to the Dealer in respect of the AOIPs?

Sub-paragraph (b) does not arise on the pleadings and is opposed for that reason.

Defendants propose: During the Period, could the amount of commission payable to the Dealer in respect of the AOIPs be negotiated by the Plaintiff and Group Members?

During the Period, could the amount of commission payable to the Dealer in respect of the Add-On Insurance products be negotiated by the Plaintiff and Group Members?

Transcript of proceedings, Anderson-Vaughan v AAI Limited & Ors (No 2) (Supreme Court of Victoria, Delany J, 7 December 2024): 5-8.

Did the AAI Sales System have or typically have the features (or involve the matters) set out in FASOC [24(c)‑(h)]?

Defendants: The allegations at FASOC [24(c)-(h)] necessarily depend upon the individual circumstances of each Group Member and their dealings with a Dealer. They cannot be answered on a common basis. The plaintiff proposes asking whether the matters alleged at FASOC [24(c)-(h)] were "typically" features of the MTAI Sales System. That is not an allegation that arises on the pleadings, nor is it one that the Court can answer. That is, without determining the claim of each Group Member, the Court cannot determine the relative prevalence of the matters alleged at FASOC [24(c)‑(h)] (e.g. whether each of them was the case rarely, occasionally or frequently). In any event, no question as to whether those matters were rare, occasional or frequent arise on the claim of the Plaintiff or any group member. The defendants accept that the allegations at FASOC [24(c)- (h)] can be determined in respect of the plaintiff's individual claim, and have proposed an amended formulation of the plaintiff's question to reflect this.

Plaintiff: The plaintiff pleads the core of the sales system at FASOC, [19] and the deficiencies of that system at [24]. The deficiencies are issues in dispute that require determination. They relate to the system and are not limited to the plaintiff's claim alone.

Defendants propose: Are any of the allegations at FASOC [24(c)-(h)] proven in respect of the Plaintiff's individual claim?

Are any of the allegations at sub-paragraphs 24(c)-(h) of the Further Amended Statement of Claim proven?

Transcript of proceedings, Anderson-Vaughan v AAI Limited & Ors (No 2) (Supreme Court of Victoria, Delany J, 7 December 2024): 9-12.

Do the premises in FASOC [49] amount to a contravention of -

a. s 961B of the Corporations Act?

b. s 961J of the Corporations Act?

Defendants: The premises of FASOC [49] are not capable of common resolution, and therefore are not appropriate for determination at the initial trial.

Whether a given Dealer gave personal advice to a given customer is an idiosyncratic question which necessarily depends upon circumstances individual to that interaction.

Plaintiff: The question is capable of resolution on a common basis by reason of the 'system' case that is pleaded: see in particular [47]-[48].

Noting the factors discussed by John Dixon J in Nathan at sub-paragraphs [2(d), (f) and (g)], draft sub-question (a) and (b) are appropriate for inclusion at this time. Although the pleaded issues and the 'systems' cases are quite different, see also the discussion in Stack at [98]-[123], in particular at [107]-[114].

If there were contraventions found in answer to Qn 21 (Personal Advice Contraventions):

a. what are the principles for assessing whether the Personal Advice Contraventions were a cause of a customer acquiring AOIPs;

b. what are the principles for measuring the compensable loss and damage (if any) suffered by a customer as a result of acquiring AOIPs;

c. were the Personal Advice Contraventions a cause of the Plaintiff acquiring AOIPs;

d. what if any compensation is payable to the Plaintiff by MTAI and AAI and SLSL or either (and if so which) of them?

Defendants: The Defendants propose deleting sub-paragraphs (a) and (b). They are essay questions and not questions susceptible to a binding, universal or comprehensive answer.

If the Plaintiff is successful in establishing a Personal Advice Contravention, the determination of her claim will necessarily involve questions of causation and quantum. The Defendants have proposed a reformulation of those questions to better align with the statutory provisions.

Plaintiff: The plaintiff puts its Personal Advice Contraventions case on the basis of the pleaded 'system' case: see in particular [47]-[48]. Accordingly, it is appropriate for the Court to address the method for assessing causation and measuring loss and damage for all group members.

Defendants propose: To the extent that any Personal Advice Contravention is established:

a. what, if any, loss or damage did the Plaintiff suffer because of that Personal Advice Contravention;

b. what, if any, compensation is payable to the Plaintiff by MTAI, AAI and/or SLSL?

If there were contraventions found in answer to Qn 21 (Personal Advice Contraventions):

a. what are the principles for assessing whether the Personal Advice Contraventions were a cause of a customer acquiring Add-On Insurance products;

b. what are the principles for measuring the compensable loss and damage (if any) suffered by a customer as a result of acquiring Add-On Insurance products;

c. were the Personal Advice Contraventions a cause of the Plaintiff acquiring Add-On Insurance products;

d. what if any compensation is payable to the Plaintiff by MTAI and AAI and SLSL or either (and if so which) of them?

Transcript of proceedings, Anderson-Vaughan v AAI Limited & Ors (No 2) (Supreme Court of Victoria, Delany J, 7 December 2024): 20-21.

Did the AAI Sales System have the consequences (or involve the matters) set out in FASOC [55(a)‑(f)]?

Defendants: The existence of the matters alleged at FASOC [55(b)-(f)] is not capable of common determination.

Whether any of those allegations is true in respect of a given group member is an idiosyncratic matter which necessarily depends upon the circumstances of that group member's interaction with a given Dealer.

The defendants accept that the allegations at FASOC [55] can be determined in respect of the plaintiff's individual claim, and have proposed an amended formulation of the plaintiff's question to reflect this.

Plaintiff: The plaintiff pleads a sales system at FASOC [19] and the consequences of that system at [55]. The consequences of the system are in dispute and require determination. The deficiencies/consequences are also not limited to the plaintiff's claim alone, but are common to all group members.

Defendants propose: Are the allegations at FASOC [55] proved in respect of the Plaintiff's individual claim.

The appropriate question for inclusion at this time is:

Are the factual allegations at FASOC [55(a)-(e)] proved?

It may be the case following evidence and submissions at trial that the question is not common, including for the reasons submitted on behalf of the defendants. In the absence of opening submissions and evidence I prefer to proceed on the basis of the issues raised on the pleadings, noting the observations by John Dixon J in Nathan at sub-paragraph [2(f)].

Having regard to the matters established in answer to Qn 23, was it reasonable for customers to expect the matters alleged in ASOC 55(i) and (ii) or either of them (and if one of them, which one)?

Defendants: As above. Because the factual premises which are said to found the customer's expectation are idiosyncratic, whether the customer actually held such an expectation and whether it was reasonable to do so must necessarily be individual questions. As Beach J has recognised, "[t]o determine whether there was a reasonable expectation that the matters comprising the commissions representations ought to have been but were not disclosed to any group member requires analysis of the peculiar circumstances of each of those group members": Stack v AMP Financial Planning Pty Limited (No 2) [2021] FCA 1479 at [200].

Plaintiffs: The question of whether it was reasonable for a person to expect disclosure involves an objective assessment. The defendants' reliance on Stack is misplaced. Stack was a case concerning financial planning advice where, unlike here, there was a significant diversity in the circumstances which might support individual claims.

The proposed question is disallowed. It falls foul of the observations by Beach J in Stack at [200] concerning a 'reasonable expectation'. To answer the proposed question requires a consideration of the peculiar circumstances of each group member.

Did Dealers, by the conduct identified in FASOC 39 to 40 and 47 to 48, make the False Reassurance Representations or either of them to Group Members?

Plaintiff: The plaintiff puts its case on behalf of group members on the basis of the pleaded 'system' case.

Accordingly, it is appropriate for the Court to address this issue on a common basis. The plaintiff relies on Self-Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8; (2023) 277 CLR 186 at [83]; Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12; (2000) 202 CLR 45, [101]-[103], [105]; Takata Air Bags Class Action - Common Questions [2018] NSWSC 1868 at [28]- [29]; Roo Roofing Pty Ltd v Commonwealth [2019] VSC 331 at [584]; and Williams v Toyota Motor Corporation Australia Limited (Initial Trial) [2022] FCA 344 at [229]- [230].

Defendants: Whether any given Dealer, by its conduct, made the "False Reassurance Representation" to any Group Member will necessarily depend upon idiosyncratic facts concerning the dealings between that Dealer and that Group Member. This question cannot be answered on a common basis. The meaning conveyed by a given Dealer's conduct cannot be determined without consideration of the precise nature of that conduct and the immediate and broader context in which it occurred: Self-Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8; (2023) 277 CLR 186 at [81]- [82].

The Plaintiff's assertion that this is a 'system' case is conclusory, arguably inaccurate and, in any event, irrelevant. The allegations at FASOC [47] to [48] depend upon the allegations at FASOC [45] to [46] which, in turn, require assessment as to what "Personal Circumstances Information" was provided by a given Group Member to a given Dealer. Similarly, various sub- paragraphs of [47] and [48] depend upon idiosyncratic questions of fact: e.g. [47(a), (b)] [48(c), (d)].

Having considered the authorities referred to in submissions, including Self-Care at [82], it is appropriate at this time to allow the question. As was the approach adopted in Merck, if it becomes apparent from the evidence and submissions at trial that the question is not common, whether because the 'implied conduct of the Dealers' depends upon idiosyncratic facts, or for other reasons, the question will not be determined.

If Yes to Qn 32 in any respect, were the said Representations -

a. false or misleading for the purposes of s 12DB(1)(a) of the ASIC Act

b. misleading or deceptive or likely to mislead or deceive within the meaning of s 1041H(1) of the Corporations Act or 12DA of the ASIC Act and if so how?

Plaintiff: The plaintiff puts its case on behalf of group members on the basis of the pleaded 'system' case.

Accordingly, it is appropriate for the Court to address this issue on a common basis.

This question is also allowed for the time being. The inclusion of the question as a common question carries with it the same caution expressed in relation to question 32 upon which the question itself depends.

If Yes to Qn 33 in any respect, were the Representations conduct within the scope of the Dealers' apparent authority from any and if so which of MTAI, AAI or SLSL? [61]

Plaintiff: The plaintiff puts its case on behalf of group members on the basis of the pleaded 'system' case.

Accordingly, it is appropriate for the Court to address this issue on a common basis.

Defendants: As for Qn 32 above. Whether a given Dealer's conduct was within the scope of the Dealer's apparent authority will necessarily depend upon (a) the nature of the conduct; and (b) what had been represented to a Group Member about the ambit of the Dealer's authority.

This question is also allowed for the time being. The inclusion of the question as a common question carries with it the same caution expressed in relation to question 32 upon which the question itself depends.

If a Dealer made representations to the effect pleaded in FASOC [66] -

a. would the representations have been wrong at any and if so what time(s) during the Period, and if so how?

b. would the representations have been conduct within the scope of a Dealer's apparent authority as representative or agent of MTAI, AAI or SLSL ? [67]

Defendants: These are hypothetical questions which do not arise on the plaintiff's individual claim, and which are incapable of being answered in a binding fashion in the abstract. Whether a representation made by a Dealer was wrong will also necessarily depend upon the precise words spoken by that Dealer to a group member, which is an individual question.

Plaintiff: The issue is relevant to group member claims and so is not abstract or hypothetical (per Uber). It requires examination of the objective question whether the stated matter was simply wrong. That enquiry will be relevant to all group members whose individual claims raise this issue. The defendants' second point is addressed by the formulation 'If ... to the effect'.

This question is permitted for the time being. The letter from Maurice Blackburn dated 8 November 2024 purports to provide particulars to FASOC [66] being the 'Preconditions Subgroup'. It is premature to exclude the question as a common question prior to determining at trial whether there is admissible evidence to support the allegation made such that the question posed is not abstract or hypothetical.

If there were contraventions found as alleged in FASOC [72]:

a. what are the principles for assessing whether the said contraventions were a cause of a customer acquiring AOIPs;

b. what are the principles for measuring the compensable loss and damage (if any) suffered by a customer as a result of acquiring AOIPs;

c. were any of the said contraventions a cause of the Plaintiff acquiring AOIPs;

d. what if any compensation is payable to the Plaintiff by MTAI and AAI and SLSL or either (and if so which) of them?

Defendants: The Defendants propose deleting sub-paragraphs (a) and (b). They are essay questions and not questions susceptible to a binding, universal or comprehensive answer.

If the Plaintiff is successful in establishing a misleading conduct contravention, the determination of her claim will necessarily involve questions of causation and quantum.

Plaintiff: the plaintiff puts its case on the basis of the pleaded 'system' case. Accordingly, it is appropriate for the Court to address the method for assessing causation and measuring loss and damage for all group members.

If there were contraventions found as alleged in FASOC [72]:

a. were any of the said contraventions a cause of the Plaintiff acquiring AOIPs;

b. what if any compensation is payable to the Plaintiff by MTAI and AAI and SLSL or either any (and if so which) of them?

As was the case concerning question 22, the question is permitted. Whether the question is answered in the broad manner in which it is framed or is restricted to the personal claim of the plaintiff will depend upon the evidence and submissions at trial.

Was the information described in FASOC [73(i) to (iv)] material to the decision of -

whether to acquire the AOIPs or enter into the Finance? [75]

Defendants: The proposed question, insofar as it refers to "a reasonable person" does not arise on the pleadings and is not relevant to any cause of action advanced.

Insofar as the question refers to the Plaintiff, the question is nonsensical as the Plaintiff alleges that she was unaware of having purchased AOIPs - i.e. she denies having decided to acquire AOIPs at all.

Plaintiff: The assessment of what information was likely to be relevant to the target audience necessarily enquires both as to its materiality and the expected - 'reasonable' - characteristics of the target audience.

Question 37(b) concerns the individual circumstances of the plaintiff. However, the question is disallowed because, as submitted on behalf of the defendants, the plaintiff alleges at FASOC [34(d)] and [37(c)] that she was unaware of having purchased AOIPs. Issue 37(a) is not a question that arises on the pleading, including FASOC [75] to which reference was made in argument, and for that reason is disallowed.

So far as any of the conduct described in FASOC [73] occurred in relation to a group member was the effect of the conduct, having regard only to the conduct as such and leaving aside any relevant facts that might be peculiar to the circumstances of the particular group member, that the group member was not informed, sufficiently or at all, of any and if so which matters in FASOC [73(i) to (iv)]?

Defendants: This is not a question of fact or law that arises on the claim of any group member. It is a hypothetical question which is incapable of being answered in a binding fashion in the abstract.

Plaintiff: The issue is relevant to group member claims and so is not abstract or hypothetical.

This question is disallowed. Whether a group member was 'not informed sufficiently' or 'not informed at all' of 'any and if so which matters in FASOC [73(i)‑(iv)]' is both too rolled up to be capable of an answer and not appropriate to be answered as a common question.

If the Plaintiff and Group members acquired the AOIPs because of the pleaded mistaken beliefs, did any and if so which of MTAI, AAI or SLSL engage in any and if so what conduct alleged in ASOC [78]?

Defendants: The Defendants have proposed some amendments to this question to better reflect FASOC [78].

Plaintiff: The defendants' proposal overcomplicates the question.

Defendants propose: If Yes to Qn 40 in any respect, did any and if so which of MTAI, AAI or SLSL engage in any and if so what conduct or have any and if so what knowledge alleged in FASOC [78] in respect of the Plaintiff's AOIP purchases?

The defendants' proposed question is appropriate. Issue 40 is limited to the plaintiff. The appropriate question is:

If yes to question 40 in any respect, did any and if so which of MTAI, AAI or SLSL engage in any and if so what conduct or have any and if so what knowledge alleged in FASOC [78] in respect of the plaintiff's AOIP purchases?

a. have any and if so which of MTAI, AAI or SLSL been unjustly enriched as alleged in FASOC [80(a)];

b. would it be unconscionable for MTAI, AAI or SLSL (as the case may be) to retain the Premiums, as alleged in FASOC [80(b)];

c. what relief is available to the Plaintiff? [79, 80, 81]

Defendants: As this question is dependent upon Qn 41 which is idiosyncratic to the Plaintiff, this question must also be idiosyncratic to the Plaintiff.

The question as to "unjust enrichment" also does not arise as a question of law or a question of fact on any cause of action. To the extent that it does, it is subsumed within the other sub-questions.

The Defendants have proposed amendments to reflect this.

Note: the Defendants have raised various matters by way of defence to the Plaintiff's claim for restitution/rescission, which would necessarily fall to be determined as part of this question. E.g. Defence [82A], [82B], [82D].

Plaintiff: the questions arise directly from the matters alleged in the pleading.

Defendants propose: Having regard to the answer to Qn 41-

a. have any and if so which of MTAI, AAI or SLSL been unjustly enriched as alleged in FASOC [80(a)];

b. would it be unconscionable for MTAI, AAI or SLSL (as the case may be) to retain the Premiums paid by the Plaintiff, as alleged in FASOC [80(b)];

c. what, if any, relief is available to the Plaintiff? [79, 80]

The question proposed by the plaintiff is framed by reference to the answer to question 41. As that question is limited to the plaintiff, so to must question 40 be so limited. The appropriate question is that proposed by the defendants, namely:

a. Would it be unconscionable for MTAI, AAI or SLSL (as the case may be) to retain the premiums paid by the plaintiff as alleged in FASOC [80(b)];

b. What, if any, relief is available to the plaintiff?

[1] [2024] VSC 625, [2(c)] ('Nathan') (citations omitted).

[2] Nathan v Macquarie Leasing Pty Ltd [2024] VSC 625.

[3] [2023] HCA 8; (2023) 277 CLR 186 ('Self-Care').

[4] [2009] FCAFC 26; (2009) 355 ALR 20 ('Merck').

[5] (2021) 401 ALR 113; (2021) 158 ACSR 1; [2021] FCA 1479 ('Stack').