Price v ClearView Life Nominees Pty Limited

Procedural history

1. Mr Price commenced these proceedings by statement of claim filed on 26 October 2021. Mr Price claims payment under the TPD Policy or damages by reason of ClearView's failure to pay the TPD benefit.
2. By its defence filed on 18 March 2022, ClearView does not admit Mr Price's entitlement to the TPD benefit.
3. The Court had made various directions for the filing of evidence, for Mr Price to undergo medical examinations, and information has been obtained pursuant to notices to produce and subpoenas.
4. By notice of motion filed on 9 April 2024, ClearView seeks relief including: 1 A declaration that the second defendant does not contravene its 'implied undertaking' as described in Harman v Secretary of State for the Home Department [1983] 1 AC 280 and Hearne v Street (2008) 235 CLR 125 (Implied Undertaking) by using: (a) documents produced under subpoena / by way of notice to produce or discovery during the course of the present proceedings (2021/00303840) (the Proceedings); (b) the plaintiff's affidavit, or any other affidavit or evidentiary statement provided in the course of the Proceedings; and (c) any expert medical, vocational, or factual report obtained for the purpose of, and served during, the Proceedings for the purpose of assessing the plaintiff's ongoing entitlement to Income Protection benefits under ClearView Life Insurance Policy no. XXXXXX. 2 In the alternative, leave to the second defendant to use: (a) documents produced under subpoena / by way of notice to produce or discovery during the course of the proceedings; (b) the plaintiff's affidavit, or any other affidavit or evidentiary statement provided in the course of the Proceedings; and (c) any expert medical, vocational, or factual report obtained for the purpose of, and served during, the Proceedings for its assessment of the plaintiff's ongoing entitlement to Income Protection benefits under ClearView Life Insurance Policy no. XXXXXX.
5. The motion was supported by an affidavit sworn on information and belief by ClearView's solicitor, Mr Andrew Gawthorne. ClearView's motion first came on for hearing before me in the Applications List on 3 May 2024. After some argument, the motion was adjourned part heard to enable ClearView to put on further evidence better describing the documents in relation to which it sought relief and the reasons why that relief was sought. This led to a further affidavit sworn by Mr Gawthorne. The hearing concluded with the benefit of Mr Gawthorne's additional evidence on 16 May 2024.

The documents in issue

1. As a result of the more detailed specification of the documents in issue in Mr Gawthorne's further affidavit sworn on 9 May 2024, the scope of the dispute between the parties narrowed. This was because Mr Gollan, correctly in my respectful opinion, no longer pressed an objection to ClearView having access to and using those documents to which it would have been entitled to by making a request under the terms of the IP Policy.
2. The documents or categories which remained in dispute were:

Report of Dr F H Roldan of 27 September 2023 Dr Roldan is a consulting clinical psychologist. The report was obtained pursuant to orders of the Court. This is a detailed 38 page report obtained upon an examination of Mr Price pursuant to a letter of instructions provided by ClearView's solicitors, including a requirement that the report comply with the expert witness code of conduct.

Report of Dr F H Roldan of 2 December 2023 It was common ground that ClearView had obtained surveillance footage of Mr Price and that there was no restriction on ClearView using that footage for the purposes of assessing Mr Price's claim under the IP Policy. However, this report is a further report obtained for the purposes of these proceedings on instructions of ClearView's solicitors in which Dr Roldan makes comments having considered the surveillance footage.

Report of Dr P Young dated 5 December 2023 Dr Young is a psychiatrist. This is a report obtained for the purposes of these proceedings on the instructions of ClearView's solicitors after a Tele-Health assessment of Mr Price by Dr Young, including Dr Young's comments on the surveillance footage of Mr Price.

Medicare/PBS documents This category involves three classes of subpoenaed documents: 1. Mr Price's Medicare patient history from 1984 to 2020; 2. Mr Price's pharmaceutical benefits scheme history statement from 1991 to 2020; and 3. Mr Price's Medicare claims history statement for 2019 to 2021.

Affidavits of Mr Price There are two affidavits of Mr Price. The first was sworn by him in May 2022 in accordance with Registrar Walton's directions made on 26 April 2022. It is a very substantial affidavit with many annexures that appears to be his principal affidavit in chief in the proceedings. The second affidavit was sworn on 8 February 2024 and contains his responses to the surveillance footage and the reports of Dr Roldan and Dr Young. It was served pursuant to directions made on 21 February 2024. This category also included an undated resume/CV for Mr Price.

Accounting documents This category concerns a number of documents produced on subpoena from two firms of accountants. The first firm are insolvency accountants who have produced various financial reports and other commercial documents in relation to Specialist Wealth Group Pty Ltd and related companies. The other firm of accountants was described by Mr Purdy as Mr Price's main accountants. This firm had produced income tax returns and BAS and IAS returns for Mr Price's family trust and various companies including Specialist Wealth Group Pty Limited, Specialist Licensee Pty Limited and Specialist Lending Group Pty Limited. There was no dispute that all of the companies and trusts whose documents had been produced were entities with which Mr Price had a connection, including as the holder of an Australian Financial Services Licence in relation to some of them at various times.

Westpac Banking Corporation These are various bank statements for St George Bank accounts (now part of Westpac Group) in the name of Mr Price from May 2018 to November 2023.

The principles and authorities

1. There was no dispute that the implied undertaking is a substantive legal obligation. Where one party to litigation is compelled - by a court's order, rules 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 has been received into evidence. The use of the documents remains under the authority of the court. These propositions derive from Hearne at pp 131[3], 154-155[96], 157[105] and 159[107].
2. The obligation is subject to inconsistent statutory provisions, curial process and other litigation. To this list I would add contractual rights. Nevertheless, the power to grant leave is not lightly exercised and will only be done where special circumstances can be shown: Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; [1995] HCA 19 at pp 33 and 37.
3. The generally accepted explication of "special circumstances" is that of Wilcox J in Springfield Nominees Pty Ltd v Bridgelands Securities Limited (1992) 38 FCR 217 at 225: … 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.
4. I also respectfully adopt a slight variation to Wilcox J's formulation proposed by Vickery J in Ambridge Investments Pty Ltd (No 3) v Baker [2010] VSC 545 (although without reliance on his Honour's reference to the Victorian Charter of Human Rights): 33 However, in approaching a determination as to whether "special circumstances" are present in a particular case, consistently with the applicable case law as it has developed to this point, I would vary a little the formulation of Wilcox J in Springfield Nominees, to arrive at the following test: "special circumstances" may arise where there are special features (or a special feature) of the case which afford good reason for modifying or releasing the undertaking, being circumstances which are of sufficient gravity to override the private and public interest in protection of the confidentiality of a person's private documents which are required by law to be produced to a court. 34 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. 35 However, an important consideration in weighing the various factors which may enliven the discretion are also matters of a public interest character. They will include the likely contribution of the document in question to achieving justice in the second proceeding and the public interest in ensuring that all relevant material is before a court to enable it to properly discharge its function. The Victorian Charter of Human Rights 42 by s 24(1) reinforces the common law right of a party to a fair criminal or civil trial. Denial of relevant documents could compromise the exercise of this critically important right and deny justice to an accused or a litigant. If this was to occur, the public interest in furthering the administration of justice could be compromised or negated.
5. To enable both the determination of whether or not there are "special circumstances" and how the discretion should be exercised, the individual document or information in respect of which the modification or release of the implied undertaking is sought, and the purpose for that modification and release, must be clearly identified: Ambridge at [43].
6. Not least because it was ClearView's primary position that the use would not breach the implied undertaking, in addition to setting out the general principles, it is of assistance to undertake a short survey of some of the authorities to which the Court was referred.
7. Riddick v Thames Board Mills Ltd [1977] 3 All ER 677 concerned a dispute between Mr Riddick and his former employer. Mr Riddick brought proceedings for wrongful arrest and for false imprisonment arising from the circumstances of his dismissal. In those proceedings a certain memorandum was discovered. That action was settled.
8. Mr Riddick subsequently commenced proceedings for defamation arising from the contents of that memorandum. The Court of Appeal by majority (Lord Denning MR and Waller LJ; Stephenson LJ dissenting) held that Mr Riddick was not entitled to use the memorandum that had been produced in discovery in the first proceedings as the basis for his fresh proceedings on a different cause of action.
9. Lord Denning, The Master of the Rolls said at 687 - 688: On the one hand discovery has been had in the first action. It enabled that action to be disposed of. The public interest there has served its purpose. Should it go further so as to enable the memorandum of 16 April 1969 to be used for this libel action? I think not. The memorandum was obtained by compulsion. Compulsion is an invasion of a private right to keep one's documents to one's self. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course that justice requires. The courts 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. Very often the party may disclose documents, such as interdepartmental memoranda, containing criticisms of other people or suggestions of negligence or misconduct. If these were permitted to found actions of libel, you would find that an order for discovery would be counter-productive. The interdepartmental memoranda would be lost or destroyed or said never to have existed. In or to encourage openness and fairness, the public interest requires that documents disclosed on discovery are not to be made use of except for the purpose of the action in which they are disclosed. They are not to be made a ground for comments in newspapers, or for bringing a libel action, or for any other alien purpose."
10. The decision of Hobhouse J in Prudential Assurance Co v Fountain Page Ltd [1991] 3 All ER 878 largely turns on the effect of the English rules of court in relation to documents that have been served where the proceedings were ultimately settled. Documents were then sought to be deployed by their recipient in subsequent proceedings in Texas. Hobhouse J determined that by reference to the relevant rules, the implied undertaking did not apply to an expert's report that had been served, but did apply to witness statements. In declining to permit use of the witness statements, his Lordship said (at 895): "The court has the power wholly or partially to release the recipient from the duty, or undertaking, and to permit use to be made of the documents nevertheless. Circumstances under which that relaxation would be allowed without the consent of the serving party are hard to visualise, particularly where there was any risk that the statement might be used directly or indirectly to the prejudice of the serving party. (This is, of course, always subject to any overriding principle of public policy)".
11. The decision of the Full Federal Court of Australia in Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283; [2005] FCAFC 3 concerned an application for leave to use an affidavit from Federal Court proceedings in an action in the Supreme Court of Victoria. The primary issue before the Full Court was whether or not the affidavit was privileged. The court determined it was not privileged, and therefore turned to the question of whether there should be a release from the implied undertaking. In granting that release, the Full Court applied Springfield Nominees with these observations (emphasis added): 31 In order to be released from the implied undertaking it has been said that a party in the position of the appellants must show "special circumstances": see, for example, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217. It is unnecessary to examine the authorities in this area in any detail. The parties were not in disagreement as to the legal principles. 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. …
12. In Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd [2011] 1 Qd R 145; [2009] QCA 345, the Queensland Court of Appeal was considering whether the appellant could deploy financial and other information produced by the respondent in an earlier application for an interim freezing order at a subsequent arbitration in relation to one of aspect of the substantive dispute between the parties. McMurdo P (with whom Muir and Chesterman JJA agreed) determined that leave should be given for the documents to be used in the subsequent arbitration for reasons which her Honour summarised as: 17 It is significant in considering whether special circumstances exist in this case that the freezing order proceedings and the Category 1 expert determination in which the builder wishes to use the specified documents are closely related and raise interlocking issues. 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. The redeveloper could argue that any cross-examination of Mr Williams and Ms English as to their credit was impermissible as it was being conducted on information obtained in the freezing order proceedings. This would especially be so if the cross-examination touched on the alleged dishonest dissipation of the redeveloper's assets. It is also relevant that the specified documents are not commercially sensitive. They appear potentially significant and relevant to the central issue in the Category 1 dispute determination: whether the key witnesses are honest.
13. However, Chesterman JA went on in his reasons to express the view in obiter dicta that, in any event, the implied undertaking did not apply in the circumstances of that case. After considering the authorities, his Honour said: 38 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." 39 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". 40 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. … 44 In all these cases the purpose to which the disclosed documents were put had no connection with the prosecution of the proceedings in which and for which the documents were produced. The use was therefore improper, and in breach of the implied undertaking. In each case the impugned use can be easily described as ulterior or collateral to the purpose behind the documents' production. 45 These cases are all very different from the present case in which the documents are sought to be used between the same parties and with respect to the same dispute. As the President has pointed out the application for a freezing order was made so as to protect the value of the cause of action which the appellants are pursuing in the expert determination. The successful application for an order restraining the respondent from dissipating its assets was a means of ensuring that success in the determination would not result in a pyrrhic victory. 46 I would not regard the purpose of the production of the documents in the application for the freezing order as being limited to the conduct of that application. It was ancillary to, and an adjunct of, the wider dispute between the parties to be determined by the expert. They were "connected", and each "related" to the other. It was, in my opinion, reasonably necessary for the conduct of the proceedings between the parties that the documents produced in the application for the freezing order be used in the expert determination. 47 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.
14. In Clark v National Australia Limited (2019) 136 ACSR 329; [2019] FCA 933, Middleton J was case managing a class action in which the plaintiff was suing in relation to "NAB Credit Card Cover". The applicant sought to amend her pleadings to include a separate claim, which would have introduced different plaintiffs, in relation to "NAB Personal Loan Cover". The amendment came about as a result of the plaintiff having used documents she had obtained by way of discovery and subpoena in the proceedings which were subject to the implied undertaking. One of the bases upon which the respondents objected to the amendment was that it was derived from the applicant's breach of the implied undertaking. In permitting the amendment, Middleton J determined that the was no breach of the implied undertaking: 17 I interpolate that, on one view, it may be that a permissible purpose for which documents protected by Harman may be used is simply the use of such documents in the same proceeding: see Allstate at 378-379. However, I proceed on the basis that there must be some "reasonable relation", to use the language of Ryan J in Mann v Medical Defence Union Ltd [1997] FCA 45 ("Mann"), between the existing case and the "new" case. … 21 Because, on NAB's submission, the two insurance products were sufficiently different, and the causes of action between the existing case and the proposed new case were sufficiently distinct, the Applicant should not be granted leave to amend her pleadings, or in the alternative, her interlocutory application seeking the same should be stayed as was done in Connective Services. 22 However, I am not persuaded that there exist such differences between the two insurance products so as to compel me to accede to NAB's submissions. In other words, I consider the claims in respect of NAB Credit Card Cover and the proposed claims in respect of NAB Personal Loan Cover are sufficiently connected for the Applicant's proposed amendments not to breach her implied Harman undertaking.
15. Among the similarities which his Honour found persuasive, the first two were that the type of policy was the same, with each product comprising of insurance in relation to a financial product held by a NAB customer; and, second, the material terms of the two policies were the same or substantially similar.
16. In the alternative, his Honour said: 26 Even if I am wrong in reaching this conclusion and the Harman obligation does arise in respect of the documents obtained and the Applicant's proposed new case, the Applicant ought to be relieved of her implied Harman undertaking in view of the special circumstances that exist in this case. Those special circumstances include the facts that: (1) the relevant documents were provided to the Applicant after NAB had the opportunity to make extensive redactions; (2) the use of the information gleaned from the document is very confined in the context of amendments otherwise made based on publicly available information; (3) the documents are not marked 'confidential' and nor were they prepared in circumstances that suggest they were intended to remain confidential; and (4) the use of the documents to allow the proposed amendments will avoid a multiplicity of proceedings, in circumstances in which the law 'strongly favours the avoidance of a multiplicity of proceedings': Pinara Group Pty Ltd v Whiting [2013] FCA 1378 at [34]; see also Allstate at 379."
17. The decision of the Victorian Court of Appeal in Hazell-Wright v 32 Domain Pty Ltd [2020] VSCA 129 concerned the use of affidavits filed in family law proceedings that had settled. In subsequent County Court proceedings, the recipient of those affidavits sought to amend their pleadings in a way that was based upon, and made express reference to, the affidavits filed in the Family Court proceeding.
18. The Court of Appeal ultimately did not have to determine the question concerning the implied undertaking. However, in closely considered obiter dicta, the court concluded: 19 In our view, these cases provide support for a general proposition that there is a class of subsequent cases between the same parties, or their privies, where the connection between the two cases has the result that the Harman undertaking in the earlier case does not prevent use of documents or information subject to that undertaking in the subsequent proceeding. In this case, the connection to the proposed estoppel and abuse of process defences is particularly strong, as those defences depend entirely for their existence on the whole of the issues in, and the conduct of, the Family Court proceeding. We note that the Family Court is not a court of pleading. Instead, the substance of the respective claims and defences are required to be set out in affidavits, verified financial statements and the like. If it were a court of pleading, estoppel and abuse of process claims such as the applicant now seeks to raise could readily be made by reference to pleading documents without raising any Harman issue. 20 In our view, there was much force in the applicant's argument that each of the proposed defences "arises directly out of" or is "legitimately" connected with the property settlement issues concerning the apartment which appear to have been finally resolved by the Family Court proceeding. Rather than using the documents for a purpose ulterior to the Family Court proceeding, the applicant seeks to use them to demonstrate that the respondent seeks to undermine the Family Court proceeding. In these circumstances, it does not appear that there is any "collateral" or "ulterior" purpose in the proposed use of the documents and information subject to the Harman undertaking in the Family Court in the County Court proceeding. However, as already noted, we need not decide that question.
19. Finally, it is necessary to notice the decision of Ward CJ in Eq (as the President then was) in Gavan v FSS Trustee Corporation [2019] NSWSC 667, being a case which ClearView submitted was relevantly similar to the case at bar. Ms Gavan was suing in relation to a TPD claim and had produced a number of documents pursuant to a notice to produce. Her Honour's primary conclusion was that the insurer's intended use of those documents for the purpose of determining her claim to TPD benefits did not involve a breach of the implied undertaking because (at [91]): "…it is not used for a purpose unconnected with the litigation in the course of which the documents have been required to have been 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, the 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 curial process)."
20. Her Honour adopted the caution of Chesterman JA in Northbuild Constructions not to adopt a too narrow and technical approach in concluding (at [92]) that the processes were connected in the sense that they would "inform and be relevant to the same primary issue". In the same paragraph, her Honour observed: 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.
21. Against the possibility that her Honour was in error, she went on to deal with whether the insurer should have leave to use the documents for the stated purpose.
22. Although obiter dicta, I respectfully adopt as correct her Honour's summary of the relevant principles: 120 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 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]). 121 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. 122 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).
23. In that case, her Honour concluded that she would not have released the implied undertaking in the broad terms sought by the insurer because it did not specify with particularity the documents in respect of which the release was sought. Her Honour indicated that she would have adopted an approach which would have led to the insurer being able to identify particular documents or particular classes of documents and the matters relied upon to support the contention that special circumstances existed to release the implied undertaking.

ClearView's submissions

1. The foundation of all of ClearView's arguments was that the parties to the TPD Policy and the IP Policy were identical and that the issues which ClearView had to consider under both policies in relation to Mr Price's medical situation and prognosis materially overlapped. The level of Mr Price's disablement was central to the satisfaction of the TPD definition in the TPD Policy. The level of that disablement at specific points in time, particularly dates of examination by medical and psychological experts, informed assessments of his long-term prognosis which was an essential element of the TPD Policy. The same issues were "self-evidently critical" in determining Mr Price's entitlement to IP benefits at or around those points in time.
2. It was submitted that the existence of the overlap between ClearView's assessment task under the two policies was why the use would not infringe ClearView's implied undertaking in these proceedings.
3. Alternatively, ClearView contended that the overlap represented special circumstances warranting the exercise of the Court's undoubted discretion to relieve ClearView from the implied undertaking so that it could engage with the relevant documents. At an early stage of the argument, I raised with Mr Purdy that the authorities to which the Court had been referred all dealt with a situation where release from the implied undertaking was sought for the purposes of another, existing proceeding. In response, Mr Purdy submitted that the present circumstances were relevantly similar to those in Clark because the "dispute" element in that case was inchoate in the sense that the use of the documents in Clark would lead to a dispute. That dispute, it was submitted, would have the necessary close connection to the dispute in which the implied undertaking had arisen. The case at bar was said to be stronger than Clark because the inchoate dispute involved the same parties, whereas in Clark it would introduce new plaintiffs to the proceedings.
4. Mr Purdy then went on to lay particular emphasis on the explanation of the implied undertaking in Liberty Funding at [31] that "it is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced for 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." (emphasis added). After drawing attention to the Full Court's reference (taken from Springfield Nominees) that the most important consideration was "the likely contribution of the document to achieving justice in the other proceeding", it was submitted that the Full Court's express reference to use of documents for "non-litigious purposes" meant that the need to achieve justice must extend to uses for such purposes.
5. Finally, it was put that the use would be consistent with the public interest in the efficient and effective operation of the insurance industry. ClearView should not be restrained in its consideration of Mr Price's disablement for one purpose, being his entitlement to the IP benefit, when it already had access to information for another very similar purpose, being Mr Price's TPD benefit entitlement. It was submitted that the case at bar was on all fours with Gavan, including highlighting the difficulties her Honour identified in Gavan at [92] (see [37] above) that ClearView would have to quarantine internally two interconnected inquiries.

Mr Price's submissions

1. Mr Gollan's fundamental response to ClearView's submissions was that the acceptance of those submissions would reduce what the High Court had held in Hearne to be a substantive obligation (Mr Gollan's submissions referred to it as a "rule of law") to a mere formality. The common contractual relationship between the parties was insufficient either to negative the insurers implied undertaking with respect to the documents, or to provide special circumstances justifying relief from the undertaking.
2. Starting from that fundamental response, Mr Gollan's further submissions may be summarised as: 1. The use would clearly infringe the implied undertaking. Furthermore, despite the matter having been raised in argument on the first day of the hearing, ClearView had provided no evidence that there was an overlap between personnel dealing with the TPD claim and those dealing with the IP claim. Therefore, there was no basis to rely on the concern referred to by Ward CJ in Eq in Gavan at [92]. 2. The present case was quite different to Clark. In that case the issue was an amendment to proceedings on foot to include further allegations, albeit those allegations may have introduced a further plaintiff to the class action. 3. ClearView's reliance on the reference to "non-litigious purposes" in Liberty Funding read a general licence into those words which their context did not justify. What permissible "non-litigious purposes" might be in any particular case had to be understood in the context of maintaining an important substantive obligation. It was to be recalled that in Hearne, which was decided after Liberty Funding, the use of documents subject to the implied undertaking for political lobbying was found to be a contempt of the implied undertaking. The proper context was the reference in the judgment of the plurality in Hearne at p160 at [107]-[108] to Hobhouse J's statement in Prudential that "circumstances under which that relaxation would be allowed without the consent of the serving party are hard to visualise, particularly where there was any risk that the statement might be used directly or indirectly to the prejudice of the serving party" (see [27] above). 4. The ultimate questions under the two policies were quite different. In relation to the TPD claim the question was whether, after three consecutive months of disablement, Mr Price was "unlikely ever again to be able to engage in [his] own occupation". Under the IP Policy, the question was whether or not, on a monthly basis, Mr Price met the definition of total disability or partial disability. The only commonality between the two was as to Mr Price's medical circumstances as at the time the relevant liability fell for consideration: the end of the three month period in relation to TPD and the monthly situation in relation to IP. 5. It would work an injustice to permit ClearView to have recourse to information beyond that to which it was contractually entitled under the IP Policy.

Consideration

1. The most distinctive feature of this case, when compared to the authorities which the Court has been taken, and which are set out in [24] to [40] above, is that there is currently no dispute, and no proceedings, between Mr Price and ClearView in relation to the IP Policy. In those circumstances, the use is plainly ulterior or collateral to the purposes for which the material was produced, being for the purposes of these proceedings. Identity of parties and some overlap of issues does not, in my respectful view, derogate from that conclusion. The Court, therefore, does not accept Mr Purdy's submission that the use would not involve a breach of the implied undertaking.
2. That being said, the Court accepts that the identity of the parties to the TPD Policy and the IP Policy, when coupled with some overlap in the issues which ClearView has to consider under each of the policies, constitutes special circumstances, being "a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present" (Springfield Nominees at p 225 - see [20] above). However, the fact that it affords "a reason" is not dispositive: the reason engages and informs the exercise of the Court's discretion.
3. There are three reasons why the Court, in the exercise of its discretion, declines to relieve ClearView of its implied undertaking to engage in the use: 1. There is no dispute or legal proceedings on foot between ClearView and Mr Price in relation to the IP Policy. Where the implied undertaking is sought to be released for the purpose of documents being used in other proceedings, the public interest in justice being done in those other proceedings is an important factor. Where that public interest is absent, as in this case, the public interest in the integrity of the existing proceedings and the importance which the authorities attach to the implied undertaking is the predominant interest. The public interest is that the need for complete evidence, disclosure and compliance with subpoenas, for example, should not be put at risk by reason of the party being compelled (or whose confidential information it is) having a concern that the necessary invasion of privacy and confidentiality will be extended to uses unrelated to the proceedings in which that has occurred. In the absence of other proceedings, it is that public interest which is paramount and militates strongly against the release of the implied undertaking. 2. While ClearView's plea for efficiency in the insurance industry is understandable, the reasons it has advanced in support of the use are, in essence, that these proceedings have given it the opportunity for access to the material, and that it would be convenient for it to be able to use the material in considering Mr Price's entitlement under the IP Policy. While that may be correct as a practical matter, giving weight to Hobhouse J's observation cited in Hearne (see [47(3)] above), opportunity and convenience are not sufficient to justify the release of the implied undertaking in the absence of the consent of the litigant who has served the material or whose otherwise confidential information is contained in material produced by third parties. Furthermore, it would be naive to think that that there is no risk that ClearView might seek to deploy the material in a way adverse to Mr Price's interests under the IP Policy, an outcome expressly disapproved in the authorities (see [26] and [27] above). 3. The relevant private interest between ClearView and Mr Price in this case is to respect and maintain their respective contractual rights under the IP Policy. Mr Gollan, with respect correctly, accepted that where ClearView had a contractual right to the material under the IP Policy, the implied undertaking could not stand in the way of ClearView having access to that material for the purposes of the IP Policy. However, rather than doing justice, it would be to work an injustice on Mr Price for the happenstance of the existence of these proceedings to give an opportunity to ClearView to have access to material (such as the financial records of the third party companies - see [17] above) to which it would not be entitled under the terms of the IP Policy. To do so would be to enlarge the categories of information available to ClearView beyond those for which it had contracted with Mr Price under the IP Policy.
4. There are five other matters which have informed the Court's conclusion.
5. First, in the absence of a dispute or proceedings about the IP Policy, it is unnecessary to undertake a precise examination of the degree of overlap between the terms of the TPD Policy and the IP Policy. While there is, in my respectful opinion, much to be said for Mr Gollan's submissions that the two policies have less in common than Mr Purdy sought to advance, the parties agree there was some degree of overlap. Because of the absence of a dispute or proceedings, even if there was a substantial overlap I would have exercised the Court's discretion in precisely the same way I propose in these reasons. The precise degree of overlap may be a more relevant consideration if there were also proceedings on foot between the parties in relation to the IP Policy, the degree of overlap then also being able to be assessed against the actual issues being litigated in the two proceedings.
6. Second, the same absence of a dispute or other proceedings means that it is not necessary for the Court to consider the different qualities of the various material. Having regard to the non-exhaustive list of factors identified by Wilcox J in Springfield Nominees (see [20] above), it will be apparent that, for example, different considerations may attach to the experts' reports in these proceedings when compared to the bank statements produced by Westpac. The present application can be dealt with by considering the material as an undifferentiated class. Again, that may not have been the case if proceedings had already been on foot in relation to the IP Policy and the issues in the two cases were available for consideration.
7. Third, I accept Mr Gollan's submission that the reference to "or for other non-litigious purposes" in Liberty Funding must be read in the context in which it appears, being an exception to the serious, substantive obligation which is the implied undertaking. It cannot be read as "any other non-litigious purposes" inviting broad application. In this case, what I have referred to as matters of convenience and opportunity are insufficiently substantial incidents of the proposed "other non-litigious purpose" to warrant the serious step of release from the implied undertaking. That is not to say that there cannot be cases where the nature of the information may warrant the release of the implied undertaking for a non-litigious purpose. One such purpose may be, for example, acting upon or reporting evidence of serious misconduct (assuming in such a case that there is no subsisting legal obligation to do so).
8. Fourth, I do not accept Mr Purdy's submission that the present case is on all fours with Gavan. I express my respectful agreement with Ward CJ in Eq's conclusion that the two stage process in that case was very much part and parcel of the one piece of litigation. That puts Gavan in the same line of authorities as Northbuild Constructions and Clark, but not this case. Gavan concerned a two stage process in the same proceedings in relation to the one policy not, as here, two different policies about one of which there was no dispute. I also accept Mr Gollan's submission that ClearView has led no evidence that would enliven the potential concern of difficulty in compartmentalising information referred to by her Honour in Gavan at [92] (see [37] above).
9. Fifth, I do not accept Mr Purdy's submission that this case is relevantly similar to Clark. In Clark the documents were sought to be used to bring a new, fully formulated claim in existing proceedings. That new claim was much more than "inchoate" to use Mr Purdy's expression: it was the subject of an amendment application. In this case, there is no dispute in relation to the IP Policy and the use is for the purposes of the IP Policy, not to found an additional claim in these proceedings. The present position between the parties in relation to the IP Policy is at an anterior stage to that between the applicant and respondents in relation to NAB Personal Loan Cover, because in the latter case the documents had already been used to formulate the claim which was the subject of the amendment. In this case, the attempt to suggest equivalence due to an "inchoate" dispute fortifies the Court in its conclusion that the fact that the material could be used adversely to Mr Price in relation to the IP Policy is a powerful discretionary factor against relieving ClearView from the implied undertaking.

Conclusion

1. ClearView's motion will be dismissed. Subject to hearing the parties, costs should follow the event.

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: 12 June 2024