Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Limited (No 5) [2004] FCA 664

FEDERAL COURT OF AUSTRALIA

Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Limited (No 5) [2004] FCA 664 AUSTRALIAN AUTOMOTIVE REPAIRERS' ASSOCIATION (POLITICAL ACTION COMMITTEE) INC v NRMA INSURANCE LIMITED (ACN 000 016 722) N 953 of 2002 LINDGREN J 13 MAY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 953 of 2002

BETWEEN: AUSTRALIAN AUTOMOTIVE REPAIRERS ASSOCIATION (POLITICAL ACTION COMMITTEE) INC

APPLICANT

AND: NRMA INSURANCE LIMITED

(ACN 000 016 722)

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 13 MAY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The motion brought by the applicant by notice of motion filed on 30 April 2004 be dismissed. 2. The applicant pay the respondent's costs of the motion.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 953 of 2002

BETWEEN: AUSTRALIAN AUTOMOTIVE REPAIRERS' ASSOCIATION (POLITICAL ACTION COMMITTEE) INC

APPLICANT

AND: NRMA INSURANCE LIMITED

(ACN 000 016 722)

RESPONDENT

JUDGE: LINDGREN J

DATE: 13 MAY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT (No 5) 1 There is before the Court a motion brought by the applicant ('AARA') by notice of motion filed on 30 April 2004. The notice of motion was returnable on 5 May 2004. The Court was informed on the evening before that date that neither of the counsel who appear for AARA in the proceeding (Mr Levet and Dr O'Hair) would be able to appear, and that by consent the hearing of the motion was to be adjourned. It was adjourned to this morning. 2 Earlier this morning, the Court was again informed that neither of the counsel for AARA was able to be present, but was advised that if the Court telephoned Dr O'Hair in New Zealand, he would appear by telephone. I was informed that Mr White of counsel would be appearing for the respondent ('NRMA Insurance'). In the circumstances I decided to permit Dr O'Hair to appear by telephone from New Zealand. As a result the motion has been able to be heard today. 3 The background facts can be found in the four judgments which I have previously delivered in the proceeding. 4 AARA moves, first, for an order that within 14 days NRMA Insurance provide to AARA's solicitors copy recordings (together with certified transcripts of them) of 'all telephone conversations with customers' undertaken by NRMA Insurance's employees or by the employees of the 'Teleclaims Centres' operated by NRMA Insurance, in respect of those claims specified in a notice to produce dated 16 February 2004 given by AARA to NRMA Insurance ('the Notice to Produce'). 5 Secondly, AARA seeks an order that NRMA Insurance permit an examination by an expert nominated by AARA of 'such computer programs, computer records, data bases, computer hardware and software as are used to record, archive and retrieve calls between Teleclaims Operators and customers of [NRMA Insurance], including … such calls as were enumerated' in the Notice to Produce, 'which [NRMA Insurance] alleges are unable to be retrieved and that [NRMA Insurance] cooperate with such expert in making such examination'. 6 By the Notice to Produce, AARA required NRMA Insurance to produce, first, '[t]he recordings of calls made to and from NRMA Insurance's telephone claims service as admitted to exist in paragraph 21 of the defence' in respect of 54 claims which are identified by their claim numbers and four claims which are identified by reference to motor vehicle registration numbers, in the Notice to Produce. In other words, what was sought was the recordings of calls made to and from NRMA Insurance's telephone claims service in relation to a total of 58 claims. 7 When the matter was before the Court on the last occasion, I directed that each party file and serve any affidavits on which it would rely on the motion and provide an outline of the submissions it would make. NRMA Insurance complied with the Court's direction. AARA did not file any submissionS, but it had previously filed an affidavit of Robert Montagnino sworn 3 May 2004. 8 Mr Montagnino's affidavit annexes the Notice to Produce and transcripts of two telephone conversations, sound recordings of which were furnished by NRMA Insurance to AARA, as referred to below. As well, the affidavit annexes, relevantly, references to passages from transcripts of sound recordings previously provided by NRMA Insurance to AARA, which passages identify yet further telephone calls, sound recordings of which had not been provided. 9 For its part, NRMA Insurance has relied on an affidavit of James Patrick O'Regan sworn 12 May 2004, an affidavit of Rodney Thomas Gonzalves sworn 23 April 2004, and an affidavit of Jeremias Zylberberg sworn 4 May 2004. The affidavit evidence establishes that sound recordings of conversations in relation to 45 of the 58 claims were previously provided to AARA (by 2 April 2004), leaving those in relation to 13 claims outstanding. (These were in fact 46 call recordings, of which one related to two claim numbers, and two were erroneously included and did not relate to claim numbers identified in the Notice to Produce.) The sound recordings of the calls in relation to two of those 13 were later located by NRMA Insurance and were subsequently supplied to AARA on 23 April 2004. Two of the remaining 11 relate to claims under insurance policies issued by another insurer rather than by NRMA Insurance. That left 9. Another two were identified by AARA by motor vehicle registration numbers, which, affidavit evidence reveals, do not correspond to claim numbers and therefore cannot be located and identified. 10 That left seven of the 58 claims. Of these seven, three related to claims which pre-dated the introduction of call recording. That left four claims. NRMA Insurance has not been able to locate the sound recordings of the telephone conversations in relation to those four claims, it states, due to malfunctions or corruptions of the call recording system. In effect, they are the subject of the motion. 11 NRMA Insurance's affidavit evidence traces at length and in detail the steps it has taken with a view to locating the sound recordings of these four telephone conversations. There is no reason to question that evidence. It is possible, I suppose, that somebody might yet think of a means of locating the four missing sound recordings, but I am not prepared to make the orders sought just because of this possibility. 12 In my opinion, the Notice to Produce has been complied with subject only to one matter. As noted at [8] above, it has been pointed out that contained in the transcripts of the telephone conversations originally provided there are references to yet further telephone conversations. In effect, AARA says that the transcripts which NRMA Insurance has produced to it demonstrate that there are yet further telephone conversations which took place in relation to the claims. 13 This may be so, but I am not prepared to order that NRMA Insurance produce the sound recordings of these further telephone conversations. In my view, it would be oppressive to require it to do so. Where would the process stop? AARA is on a fishing expedition. There is little dispute about the facts of this case. NRMA Insurance admits that through its Teleclaims Consultants it seeks to encourage its insureds to agree that 'Preferred Smash Repairers' repair their vehicles. The question for decision is one of law, the resolution of which will not be aided by the availability of the recordings of further telephone conversations. 14 The second order sought in the motion should not be made either. It is based on nothing more than suspicion. 15 The motion should be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.