Plaintiffs v First Defendant

3 Between 23 April 2025 and 12 November 2025, the parties engaged in correspondence concerning the defendants' provision of critical documents pursuant to s 26 of the Civil Procedure Act 2010 (Vic) ('CPA').

4 On 22 October 2025, the plaintiffs' solicitors wrote to the defendants' solicitors regarding certain proposed categories of discovery.

5 Subsequently, the plaintiffs initiated the steps mandated by paragraph 8 of the Court's Commercial Court Practice Note SCCC ('CC Practice Note') by writing to the defendants' solicitors seeking a response with respect to the plaintiffs' proposed discovery orders sent on 6 November 2025.

6 Between 11 November 2025 and 26 November 2025, the parties engaged in constructive engagement with respect to the plaintiffs' proposed discovery orders.

7 That engagement process resulted in substantial agreement between the parties as to the proposed discovery orders, including agreement as to the proposed categories of discoverable documents.

8 Amongst the 14 agreed categories were the following four categories:

Documents prepared by, or provided to, Key Personnel and Board Materials during the Relevant Period in respect of one or more Add-on Insurance products and containing details of the claims loss ratios.

4. Sales Practices and Processes Reporting

Documents of or provided to key personnel and board materials in respect of one or more of the Add on Insurance products and relating to value, sales and compliance practices and processes.

Documents of, or provided to, Key Personnel and Board Materials in respect of one or more of the Add-on Insurance Products and relating to:

(a) product design, including the existence or lack of suitability, value or benefits for customers;

(b) actuarial reports;

(c) product reviews, including any risk assessments, decisions to amend, commence issuing or cease issuing any of the Add-on Insurance products.

...

9. Commissions

(a) Information detailing the amount of commissions paid to Dealers in relation to the Add-on Insurance products issued during the Relevant Period on an annual basis up to 30 June 2025.

(b) Documents of Key Personnel and Board Materials during the Relevant Period recording the basis on which commissions were set, reviewed or revised by the defendants at any time during the Relevant Period.

9 Foundational to the scope of discovery in respect of those categories were the scope of the Documents, the identification of Key Personnel, the scope of Board Materials, and the Relevant Period.

10 The parties agreed on the definition of 'Board Materials' and otherwise agreed on a mechanism for identifying and communicating to the plaintiffs the identities of the Key Personnel. Relevantly, the Relevant Period was the same as that set out in the further amended statement of claim filed on 16 September 2025, which period was 1 January 2010 to 5 October 2021. 'Key Personnel' was defined, with reference to each defendant, as 'the persons who were, from time to time during the Relevant Period, either senior leaders or directly reported to the senior leaders with responsibility for the design or distribution (including risk and compliance functions) of the Add-on Insurance policies'.

11 Relevantly, in an affidavit sworn on 4 December 2025, Ross David McInnes, a partner of Clayton Utz, solicitors for TFAL, deposed that approximately 10 individuals constituted 'Key Personnel'.

12 The parties reached substantial, but not complete, agreement as to the definition of 'Documents'.

13 The plaintiffs sought discovery of documents comprising 'emails, meeting papers, minutes, reports, template correspondence to Dealers, as well as any other document in the nature of investigations, due diligence, risk assessments, reviews, audits, memoranda, advices, action plans, summaries or documents relating to or recording outcomes of the same' (underlining added for emphasis).

14 The defendants agreed to providing discovery of documents comprising the matters proposed by the plaintiffs, with the exception of 'emails'.

15 The only remaining area of dispute between the parties was the time for provision by the defendants of the discovery ordered.

16 Having regard to the narrowness of the matters in dispute, the parties jointly requested that the dispute be determined on the papers in chambers, without an oral hearing, on the basis of materials forwarded to chambers.

17 The plaintiffs relied on the affidavit of Andrew Paull, affirmed on 4 December 2025, and also filed a short written submission dated 4 December 2025. TFAL relied on the affidavit of Mr McInnes[1] and also filed a short written submission. ADICA similarly filed a short written submission.

18 Having considered the evidence and the parties' submissions, I determined to make orders in the form sought by the defendants. I excluded emails from the ambit of material which constituted the 'Documents' for the purpose of the discovery orders. I also accepted the defendants' submissions with respect to the timing for the provision of discovery.

19 Following the issuance of orders to the parties, the plaintiffs' solicitors requested written reasons on 9 December 2025. Paragraph 8.5 of the CC Practice Note specifies that in the case of interlocutory disputes relating to matters of practice and procedure reasons will not generally be provided. Notwithstanding that guidance, I determined to provide short reasons given that it was requested by the plaintiffs. However, the provision of written reasons on request should not be taken either by the parties or more generally as something that will be acceded to inevitably if requested by the parties.

20 The plaintiffs submitted that the emails were relevant documents in respect of their claims that the defendants knew or ought to have known variously that the Add-on Insurance products lacked value and/or were unsuitable for the plaintiffs and group members, that the manner in which they were being sold by the dealers was flawed and that the matters were knowingly concealed by TFAL from the plaintiffs and group members. It was submitted that emails would be probative in respect of the design of the Add-on Insurance products over time, including the existence or lack of suitability, value or benefits for customers, and of any internal reviews or risk assessments or actuarial reports that might have been undertaken in respect of the products.

21 Otherwise, the plaintiffs submitted that production of emails in the context of large-scale litigation was proportionate and consistent with the overarching purpose, having regard to their relevance, the defendants' resources, as well as the large number of group members and potential quantum claims. Relevantly, the plaintiffs noted that the burden was not unreasonable in circumstances where the defendants are likely to utilise technology-assisted review and targeted keywords, and that the searches would be confined to Key Personnel as identified by the defendants themselves.

22 My reasons for excluding emails from the scope of the definition of 'Documents' were as follows:

(a) according to Mr McInnes's evidence, the inclusion of emails in the scope of the documents to be discovered would require potentially millions of emails to be ingested and searched, and the search results reviewed in order to identify emails responsive to the proposed discovery categories and accordingly require TFAL to incur substantial additional costs;

(b) as a result, the time for the provision of the additional discovery would expand from provision of documents in tranches from 12 December 2025, 6 February 2026, 6 March 2026, 27 March 2026 until 'some time in April or May 2026';

(c) discovery orders made in other Add-on Insurance group proceedings have similarly excluded emails from the scope of the documentation to be searched for and then discovered;[2]

(d) it is highly likely that documents the subject matter of discovery categories 3, 4, 5 and 9, covering claims loss ratio reporting, details of the claims loss ratios, sales practices and processes reporting in respect of the Add-on Insurance products relating to value sales and compliance practices and processes, product design actuarial reports and product reviews, the amount of commissions paid to dealers in relation to the Add-on Insurance products and the basis on which commissions were set, reviewed or revised would be recorded in documents other than emails sent to or received by Key Personnel, and by reason of each category's reference to Key Personnel will in and of themselves evidence the knowledge of Key Personnel of those documents and their content;

(e) relatedly, the scope of documents the subject of the orders is likely to evidence both the relevant subject matter and Key Personnel's knowledge of the subject matter, given that it would include meeting papers, minutes, reports, template correspondence to dealers or any other document in the nature of investigations, due diligence, risk assessments, reviews, audits, memoranda, advices, action plans, summaries or documents relating to or recording outcomes of the same;

(f) finally, in any event, the agreed categories included Category 14, headed 'Known relevant documents,' which comprises documents that adversely affect the defendants' case or support the plaintiffs' case, or which have been identified by the defendants' solicitors or those employees of the defendants who instructed those solicitors in the course of carrying out reasonable searches for documents responsive to the categories but not falling within any of the categories.

23 In short, I considered that there was every reason to suppose that the agreed document categories would be sufficient to capture all relevant documents relating to categories 3, 4, 5 and 9, such that the associated increase in costs and commensurate delay associated with an expansion of the scope to include a search for emails was not proportionate in all the circumstances. This had been implicitly recognised in similar cases where emails had been excluded.

24 The remaining dispute as to timing largely fell away in light of the exclusion of emails. I was satisfied that the defendants' proposal to provide discovery in tranches, with the last batch to be provided on 27 March 2026, was reasonable and appropriate.

[2] Anderson-Vaughan v AAI Limited (S ECI 2021 00930; Fuller v Allianz Australia Insurance Limited (S ECI 2020 02853).