The Queensland Supreme Court recently refused an application by a class-action plaintiff to obtain a copy of the defendant’s insurance policy and documents that would show whether the Defendant was insured for its liability on the plaintiff’s claim for damages.
The Court distinguished this case from prior Federal Court decision in the Radio Rentals class action case to refuse the application for disclosure. The case considers the factors the court will consider when exercising its discretion under its general case management power under s103ZA of the Civil Proceedings Act 2001 (Qld) (“CPA”) to order disclosure of insurance policies held by defendants.
The plaintiffs brought a $70 million class action against Advanta Seeds for loss allegedly caused by the supply of contaminated sorghum seed. The application was brought in preparation for a mediation.
In advance of the mediation, Advanta told the Plaintiffs it was not insured for its liability to the Plaintiffs. The Plaintiffs wished to satisfy themselves about the extent to which Advanta was in fact insured, and whether it had the capacity to pay the very substantial claim against it so they sought a copy of the policy. Advanta refused to provide it.
s103ZA of the CPA allows a court in any proceeding to make any order it considers appropriate or necessary to ensure justice is done. The Plaintiffs relied on this provision to ask the Court to order Advanta to provide a copy of its insurance policies and documents relating to its claim it was not covered by its insurer for the claim.
The plaintiffs argued the defendant’s insurance policy should be disclosed on the basis:
- The Plaintiffs should be fully informed, prior to mediation, about the extent of funds available to the defendant to meet any damages award and to satisfy the court the reasonableness of any settlement reached (because Court approval is required for a class action).
- To know whether the Plaintiffs could pursue the defendant’s insurer directly if it refused to indemnify Advanta.
- To test why the insurer had covered two previous apparently similar claims and see whether Advanta’s rights under the insurance policy had been lawfully and finally compromised.
- If the policy required some pre-condition to be satisfied to entitle Advanta to indemnity, to identify what that trigger was so there would be insurance to cover the claim.
The defendant opposed the application on the basis:
- The application was a “ vexatious … fishing expedition”.
- If the plaintiffs intended to pursue the insurer, the Plaintiff should have joined it as a party to the application, as was done in the Radio Rentals case
- There is publicly available information that Advanta has the financial capacity to meet any adverse judgment.
Why the insurance disclosure application was rejected?
Justice Mullins held this case should be distinguished from the Radio Rentals case because:
- There was no evidence of an arguable case the insurer was wrongfully refusing to indemnify.
- There was no evidence Advanta was unable to meet a judgment if the Plaintiffs’ claim succeeded.
- Advanta did not dispute it was not entitled to indemnity under its insurance policy.
As a result, the Court held there was no basis to “go behind” Advanta’s sworn assertion it was not covered by insurance for the claim. The Court observed, “it is merely speculation on the plaintiffs’ part that there is something for them to pursue”.
Justice Mullins also rejected the plaintiffs’ argument they would be impeded at mediation without the insurance policy information. Her Honour placed heavy emphasis on the fact Advanta, unlike Radio Rentals, had substantial assets and continued to operate a profitable business and the plaintiffs’ concern Advanta could not satisfy adverse judgment was factually unfounded and unreasonable.
Justice Mullins found disclosure of the defendant’s insurance policy and related documents was not appropriate or necessary for the fair conduct of the proceedings, so the application for disclosure was dismissed and the plaintiff was ordered to pay the defendant’s costs.
The starting point is always that the defendant’s insurance position is not a relevant issue in a claim between a Defendant and a Plaintiff. In the Radio Rentals decision, the broad power under s103ZA of the CPA of the Court to regulate proceedings was successfully relied upon to overcome this traditional obstacle. However, the decision in Mallonland v Advanta shows the Court will only use this power in quite exceptional circumstances.
The law in this area may develop in the future, but at present it seems the court will only likely order a defendant to disclose documents relating to its insurance if there is genuine doubt about the defendant’s ability to pay a judgment and there is some reason to believe the insurer has improperly refused to pay the claim.
Courts will need to balance the inconvenience and cost to litigants and the Courts of pursuing claims to trial where there is no financial capacity to meet the judgment, with the need to only litigate live and genuine issues, and the needs of parties to keep their confidential business affairs confidential. It will be interesting to see if future cases place a stronger emphasis on the financial capacity of the Defendant or the ability of the Plaintiff to advance an arguable challenge against the insurer’s refusal to indemnify.
Both insurers and litigants need to be aware of the factors the court will consider in exercising its powers and take a careful and strategic approach to disclosure of information about a party’s insurance position. Our insurance team can assist in advising you as a party to litigation or insurer on how to protect your interests in obtaining or withholding disclosure about insurance policies. Please contact our office on (07) 3211 2233 or enquire using the below form.