Supreme Court New South Wales Medium Neutral Citation: RGA Reinsurance Company of Australia Ltd v Westpac Life Insurance Services Ltd [2020] NSWSC 1299 Hearing dates: 15 September 2020 Date of orders: 23 September 2020 Decision date: 23 September 2020 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Summons to be dismissed Catchwords: INSURANCE – reinsurance – reinsurance treaty – where reinsurer apprehends insurer may have sold or transferred reinsured policies in breach of term of treaty – where reinsurer seeks to exercise rights to call for documents under treaty – where reinsurer did not tender documents provided to it by insurer likely to cast light on whether any such breach occurred – where request must be reasonable – whether reasonableness of request could be assessed without seeing such documents – whether other bases to resist production made out PRACTICE AND PROCEDURE – discovery – preliminary discovery – whether it appears that applicant may have a cause of action – whether it appears applicant has made reasonable inquiries Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: AG v Selwyn Mine Ltd [2005] FCA 801; (2005) 223 ALR 238 Glencore International AG v Selwyn Mine Ltd [2005] FCA 801; (2005) 223 ALR 238 Hatfield v TCN Nine Pty Ltd (2010) 77 NSWLR 506; [2010] NSWSC 69 O'Connor v O'Connor [2018] NSWCA 214 St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147 Category: Principal judgment Parties: RGA Reinsurance Company of Australia Ltd (Plaintiff) Westpac Life Insurance Services Ltd (Defendant) Representation: Counsel: P S Braham SC with J Dooley (Plaintiff) R G McHugh SC with P M Knowles (Defendant) Solicitors: Clyde & Co (Plaintiff) MinterEllison (Defendant) File Number(s): 2020/225575 Judgment 1. The plaintiff, RGA Reinsurance Company of Australia Ltd, and the defendant, Westpac Life Insurance Services Ltd, are parties to a Life Reinsurance Treaty made on 26 October 2017 ("the Treaty"). 2. Under the Treaty RGA reinsured certain policies of insurance including policies referred to as the "Reinsured Master Policies" ("the Policies") that were issued by Westpac Life to various trustees ("the Trustees"). 3. The Trustees [1] are part of the Westpac corporate group but, obviously, have independent obligations including to act in the best interests of the members of the funds operated by them. 4. On 29 May 2020, Westpac Life informed RGA that: 1. the Trustees had given Westpac Life notice that they had: 1. appointed a new insurer for their group insurance arrangements; 2. determined to terminate the Policies with effect from 1 July 2020; and 1. accordingly, the Treaty automatically terminated in relation to those Policies by reason of Art 19.1 of the Treaty. 1. I will return below to Westpac Life's letter on 29 May 2020 and the correspondence that led to, and followed it. 2. Article 1.5 of the Treaty provides that Westpac Life: "… is not entitled to …. sell or transfer or attempt to sell or transfer any of the [Policies] … without [RGA's] prior written consent … " 1. RGA apprehends that Westpac Life may have acted in breach of this prohibition and accordingly seeks to exercise its right under Art 20.2 of the Treaty to obtain documents from Westpac Life. 2. Article 20.2 Treaty provides: "20.2 Either Party must, on request, with reasonable Notice, from the other Party, allow that Party and its appointed agents such access to its premises and to its Records during normal business hours as the Party may reasonably require and must, on reasonable request but subject to any legal obligation to the contrary, provide copies of any Records to the other Party or its appointed agents." 1. "Records" are defined very broadly to include: "…all of a Party's books, records, statements and accounting records, including records stored as data on any computer system, that are necessary or desirable to record and explain all transactions in relation to the Reinsured Master Policy." 1. Alternatively, RGA seeks an order for preliminary discovery pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 5.3(1) of some, but not all of the documents sought under Art 20.2 of the Treaty. Decision 1. RGA has not established an entitlement to an order under Art 20.2 or to preliminary discovery. The Records sought 1. In its Summons, RGA sought a wide variety of documents. 2. On 11 September 2020, two working days before the hearing, Westpac Life provided RGA with 11 documents. 3. As a consequence, on 14 September 2020, the day before the hearing, RGA refined the documents sought to 12 categories. 4. The documents provided by Westpac Life to RGA included 2 agreements dated 30 June 2020 being: 1. a Group Insurance Takeover Deed made between one of the Trustees, [2] Westpac Life and the new insurer referred to in Westpac Life's letter to RGA of 29 May 2020, AIA Australia Ltd ("AIA"); and 2. a Group Insurance Transition Services Agreement made between Westpac Life and one of the Trustees. [3] 1. Westpac Life's solicitor had earlier annexed redacted copies of each of these agreements to an affidavit, showing only the clauses dealing with confidentiality. [4] Neither party tendered copies of the unredacted documents. The correspondence between the parties 1. On 25 March 2020 the Trustees wrote to Westpac Life. 2. The Trustees contend that the contents of this letter are confidential. I am informed, however, that the Trustees do not object to me setting out its effect in these reasons. 3. The effect of the 25 March 2020 letter was that the Trustees informed Westpac Life that: 1. they had decided to appoint a new insurer in place of Westpac Life for the Policies; 2. a memorandum of understanding was to be executed between the Trustees, Westpac Life and the new insurer in relation to "transitional arrangements"; 3. the Trustees would give Westpac Life notice of the appointment of the new insurer and use their best endeavours to "transfer" all services and group insurance arrangements to the new insurer within a specified period; and 4. the Trustees expected that "at termination" Westpac Life would comply with the Financial Services Council "takeover terms". 1. A later passage in the letter makes clear that the Trustees' reference to "termination" was a reference to the termination of the Policies in accordance with the termination provisions within the Policies. Those provisions entitled the Trustees to terminate the Policies by giving various periods of notice ranging from 30 to 90 days. 2. On 28 May 2020 the Trustees again wrote to Westpac Life. 3. Mr McHugh SC, who appeared with Mr Knowles for Westpac Life, submitted that this letter comprised the operative letter of termination of Westpac Life's appointment as insurer of the Policies. 4. Again, because the Trustees' contention that this letter is confidential, I will set out only its effect. 5. The effect of this letter was that: 1. the Trustees had decided to proceed with the appointment of an alternative insurer to Westpac Life; 2. AIA had been so appointed; 3. the appointment related to all services and group insurance arrangements; and 4. the Trustees looked forward to Westpac Life's support on the "transfer". 1. The following day, 29 May 2020, Westpac Life notified RGA of the Trustees' decision. This is the letter to which I referred at [4] above. 2. The letter read: "I am writing to advise you that on 28 May 2020, [Westpac Life] received a notice from the [Trustees] that [they have] appointed AIA as the new insurer for their group insurance arrangements (a full list of the affected policies is provided in an Appendix to this letter) (Group Policies). This appointment will be effective from 1 July 2020. The [Trustees have] determined to terminate the existing Group Policies [they hold] with [Westpac Life] with effect from 1 July 2020. AIA will issue new policies to the [Trustees]. We note that the Group Policies are Reinsured Master Policies covered by the Reinsurance Treaty between [Westpac Life] and [RGA], dated 26 October 2017 (Treaty). Pursuant to clause 19.1 of the Treaty, the Treaty automatically terminates in relation to a Reinsured Master Policy, Employer Plan or Life Cover when the respective policy, plan or cover is cancelled. Accordingly, the Treaty will terminate in respect of the Group Policies on and from 1 July 2020 and the risks will no longer be reinsured by [RGA]." 1. The Appendix to the letter was headed "Group Policies to be Terminated on 1 July 2020" and listed the Policies. 2. Evidently, at around this time, RGA had received informal notice that Westpac Life might be removed as insurer. 3. Thus, on 29 May 2020, RGA sent an email to Westpac Life [5] expressing concern about "how the business is being moved from" Westpac Life and questioning whether Westpac Life had acted in breach of Art 1.5. 4. On 4 June 2020 RGA wrote to Westpac Life: 1. requesting a copy of the "Trustee Termination Notice"; 2. recording that: "a number of issues between [Westpac Life] and the [Trustees] have reached a point whereby the Trustee, comprised of affiliated Westpac Group companies, has felt compelled to move the Group Policies to another insurer in the best interests of its members"; and 1. recording that RGA's: "consent had never been sought or provided as required by Article 1.5 of the Treaty". 1. Westpac Life replied on 11 June 2020 stating that: "…the termination of the Group Life Insurance Policies by the [Trustees] is not a sale or transfer of the policies by [Westpac Life] to another insurer. Accordingly, Article 1.5 of the Treaty is not relevant." 1. I read this as a denial, in terms, by Westpac Life that it had sold or transferred the Policies and thus a denial of any breach by it of Art 1.5 of the Treaty. 2. Earlier in the letter, Westpac Life said that RGA: "…should have been aware of the [Trustees'] right to terminate the [Policies] without cause …" and later continued: "The Trustees have made the decision to change insurers, and we cannot speak for the [Trustees] as to the reasons for that decision… However we have previously conveyed to [RGA] that the premium increases proposed by [RGA] have not aligned with the [Trustees'] and our expectations, particularly in relation to the Westpac Group Plan." 1. On 18 June 2020 RGA wrote to Westpac Life [6] stating that Westpac Life's letter of 11 June 2020 had not addressed "the questions we have raised" [7] and requesting a copy of the "Trustee Termination Notice". 2. In response, on 22 June 2020 Westpac Life provided RGA with what it described as a letter from the Trustees "confirming cancellation of the group life insurance policies". 3. That letter was dated 12 June 2020 and read: "Termination of Group Life Insurance Policies We confirm that: 1. BT Funds Management Limited (BTFM) and [Westpac Life] agreed, in the context of BTFM considering the appointment of an alternative group life insurer, that BTFM could provide [Westpac Life] with one month's notice of such an appointment. 2. On 28 May 2020 BTFM notified [Westpac Life] that an alternative group life insurer had been appointed in place of [Westpac Life] with effect on and from 1 July 2020 and that it relates to all of the services and group life insurance arrangements referable to the Insurance Services Deed between BTFM and [Westpac Life]. For the avoidance of doubt, the relevant group life insurance policies listed in the Appendix, as issued by [Westpac Life] to BTFM, are to terminate on and from 1 July 2020." 1. The Appendix listed the same Policies as in the Appendix to Westpac Life's letter of 29 May 2020. 2. The evidence does not reveal why Westpac Life at this stage chose to provide RGA with this letter, rather than the operative letter of 28 May 2020 referred to at [21]-[24] above; nor how it came about that the Trustees provided Westpac Life with the "confirmation" in the letter. It may be, as was put by Mr Braham SC, who appeared with Mr Dooley for RGA, that it was created for the purpose of provision to RGA, although I cannot see what inference I should draw from that. I see no inconsistency between this letter and the Trustees' letter of 28 May 2020. 3. On 30 June 2020, Westpac Life, one of the Trustees and AIA executed the Group Insurance Takeover Deed and Group Insurance Transition Services Agreement to which I referred at [15] above. 4. It appears very likely, if not certain, that these Deeds record the arrangements made between Westpac Life, the Trustees and AIA following the Trustees' decision communicated to Westpac Life on 28 May 2020. Indeed, as I set out below at [56], Mr McHugh confirmed that these were his instructions. 5. As I have mentioned, heavily redacted copies of these Deeds are in evidence. Those copies reveal nothing of the substance of the arrangements evidently recorded in them. Unredacted copies of these documents were provided to RGA on 11 September 2020. Neither party tendered them. More particularly, RGA did not tender them; a matter emphasised by Mr McHugh on several occasions during the hearing. Issues in relation to application under Article 20.2 1. A number of issues arise in relation to RGA's application under Art 20.2. 2. However, the overriding question is whether RGA's request is, in all the circumstances, reasonable. I will turn first to that question. The Reasonableness issue 1. The request for "Records" under Art 20.2 must be "reasonable". 2. As I have set out, "Records" is defined to include records "necessary or desirable to record and explain all transactions in relation to" the Policies. 3. The "transaction" that is the object of RGA's request under Art 20.2 was described by Mr Braham as the cancellation or "possible" sale or transfer of the Policies. 4. Thus Mr Braham and I had this exchange: "HIS HONOUR: So the transaction then is the termination or, you say, the possible sale of the policies? BRAHAM: Yes, we are investigating whether there has been a sale or transfer of these risks." [8] 1. In the course of addressing one of the categories of documents sought by RGA, Mr Braham said that that document: "…is likely to give us the reasons why [the cancellation of these policies] occurred and shed light on whether it was in truth a cancellation or in truth a transfer." [9] 1. It is not part of my task on this application to reach any conclusion as to whether Westpac Life sold or transferred the Policies in breach of Art 1.5. 2. However, I have to consider the reasonableness of the request for documents by RGA and, in that context, record that I have seen no documents that suggest that Westpac Life did sell or transfer the Policies to AIA or any other party. 3. In particular, 1. in their 25 March 2020 letter to Westpac Life the Trustees: 1. said that they had decided to appoint a new insurer in place of Westpac Life; 2. said that they (not Westpac Life) would use their best endeavours to transfer "group insurance arrangements" (ie the Policies) to the new insurer; and 3. spoke of Westpac Life's obligations at "termination" which in the context of the letter, clearly meant the Trustees' termination of the policy; 1. in their 28 May 2020 letter to Westpac Life, the Trustees: 1. gave notice of the appointment of the new insurer; and 2. stated that they looked forward to Westpac Life's "continued support on the transfer" which, in the context of the Trustees' letter of 25 March 2020 meant the transfer by the Trustees of the Policies; 1. in its 29 May 2020 letter to RGA, Westpac Life: 1. told RGA that the Trustee had appointed AIA as a new insurer and that the Trustee had determined to terminate the Policies with effect on 1 July 2020; and 2. attached an appendix listing the policies "to be terminated"; 1. in its 11 June 2020 to RGA, Westpac Life denied that it had sold or transferred the Policies to another insurer; and 2. in their 12 June 2020 letter, the Trustees confirmed: 1. the appointment of the new insurer; 2. that the Policies were to terminate on 1 July 2020. 1. The 12 categories of documents sought by RGA are set out in the Appendix to this judgment. Ten of those categories are directed to the Trustees' decision to appoint a new insurer in place of Westpac Life. They are said to be likely to cast light on whether the Trustees have appointed a new insurer in place of Westpac Life and cancelled the Policies or, whether, as RGA evidently suspects, Westpac Life has in breach of its obligations under Art 1.5 of the Treaty sold or transferred the Policies to, presumably, AIA. The other two categories [10] are related to re-pricing, a matter said only to be relevant because of Westpac Life's comment recorded at [33] above concerning "premium increases", and thus in effect directed to the same question. 2. Westpac Life has provided RGA with the Group Insurance Takeover Deed and Transitional Services Agreement executed on 30 June 2020. 3. Save in the heavily redacted form to which I have referred, [11] those documents are not before me. 4. In the course of argument, I asked Mr McHugh whether Westpac Life had in its possession any documents other than the Group Insurance Takeover Deed and the Transitional Service Agreement recording the transaction referred to in the Trustees' letter of 28 May 2020. 5. Mr McHugh, after taking instructions, gave this response: "My client's understanding of the transaction is that it is a cancellation of the policies and so, to go back to what I said to your Honour before, the operative document as at the 29th of May when notice was given to RGA is the letter of the 28th of May, which is in evidence, and that one, as I said to your Honour earlier, has to be read in light of the earlier correspondence of the 25th of March and the 2nd of March, both of which have been provided to my friend's instructing solicitors. After the 29th of May there are two documents that could fairly be described as giving effect to that transaction and they are the takeover deed, which was entered into in July and the transitional services deeds which I think was also … sorry, I said entered in July, entered in June, effective 1 July and the transitional services deed or the transitional services deed, which was also entered in June and operated after that and both of those were provided [to RGA] on Friday [11 September 2020]. So, on that basis, the answer to your Honour's question is I don't think there are any other documents and I am instructed that there are not any other documents that give effect to that transaction, so that is the best I can do to answer your Honour's question." [12] (Emphasis added.) 1. Thus Mr McHugh said that his instructions were that the transaction involving the cancellation of the Policies was fully recorded in those two documents. 2. In that regard, Mr Braham said in reply submissions: "We then have the entitlement to documents which explain transactions. Explain means something beyond record. You don't explain the transaction fully by just giving us the transaction documents. What we have sought to do is ask for documents that will reveal the context and reasons for the transaction." [13] 1. Earlier, Mr Braham submitted: "We want to know if once the parties became aware of RGA's concerns the commercial arrangement was not entirely contained in the group takeover deed." [14] 1. There is a serious implication within that statement, namely, that Westpac may have knowingly provided RGA with what it knows to be incomplete record of the transaction. 2. The question of whether RGA's request for documents is reasonable must be considered in the context of all these matters. 3. It was for RGA to show that its request was reasonable and for it to place before the Court all documents that would enable a sensible assessment to be made of that question. 4. Such documents included the two 30 June 2020 agreements especially in the context where: 1. nothing in the evidence suggests that the commercial arrangements between the trustees and Westpac Life involved a sale or transfer by Westpac Life of the Policies to another insurer; 2. Mr McHugh informed me that his instructions were that those commercial arrangements were given effect to by those two agreements and no other documents; and 3. Mr McHugh repeatedly referred to the fact that RGA had unredacted copies of the deeds, but RGA without explanation failed to tender them. 1. In those circumstances, my conclusion is that the reasonableness of RGA's request cannot sensibly be assessed without seeing the two deeds. 2. For that reason, I am not prepared to order Westpac Life to produce any of the documents sought by RGA. 3. It is accordingly unnecessary for me to deal with the other bases on which Westpac life resisted RGA's claim. However, in deference to the detailed arguments put, I will do so, albeit briefly. The Specific Document issue 1. Article 20.2 of the Treaty obliges each party to provide the other with "copies of any Records". 2. Mr McHugh submitted that, on the proper construction of Art 20.2, the obligation to provide copies of Records was an obligation to provide a copy of a specific document of the kind that could be clearly identified; and that the obligation did not extend to require the producing party to undertake a process in the nature of discovery requiring searches to be performed over a potentially large number of documents for the purpose of locating documents within a generally described category. 3. However, as Mr Braham pointed out, Art 20.2 obliges each party to do two things: permit access to Records and, on reasonable request, produce copies of Records. 4. The article thus contemplates each party having an opportunity to inspect the other's Records as well as an entitlement to seek copies of Records. 5. RGA did not seek access to Westpac Life's premises to inspect its Records and Mr McHugh did not submit that RGA's entitlement to see copies of Records was conditional on an anterior inspection. 6. Thus, the parties must have contemplated that either of them might seek copies of Records without having first inspected them. It must follow that the parties contemplated that either could seek copies of Records without knowing, precisely or at all, what Records the other kept. 7. In my opinion, on the proper construction of Art 20.2 the touchstone is not whether specific documents can be clearly identified. Rather, it is whether the request is, overall, reasonable. The Article 20.6 Issue 1. Next, Mr McHugh submitted that the scope of permissible requests under Art 20.2 was informed by Westpac Life's obligations under Art 20.6 which provides: "[Westpac Life] must report to [RGA] all the information, and on the frequency, set out in the Records and Reporting section of the applicable Reinsurance Schedule or as otherwise agreed in writing between the Parties. The information must be complete and accurate and provided in a timely manner." 1. The Reinsurance Schedules create an obligation to provide information in relation to the reinsured policies, the policy holders and the claims made under the policy. The evident purpose of Art 20.6 is to permit RGA to obtain information relevant to the assessment of the reinsured risks. 2. In those circumstances, Mr McHugh submitted that the obligation in Art 20.2 should be read down as permitting access only to documents necessary to determine the risks the subject of the Treaty. 3. I see no reason to so read down Art 20.2. 4. As Mr Braham submitted, the evident purpose of Art 20.6 is to impose on Westpac Life a discrete obligation, namely to provide information relevant to risk. 5. I do not see it as a reason to confine parties' entitlement to access to, and copies of, Records relating to such matters. The Confidence Issue 1. The parties' obligations under Art 20.2 to provide copies of any Records are expressed to be "subject to any legal obligations to the contrary". 2. Mr McHugh submitted that such a "legal obligation" included an obligation of confidence and that, in this case, Westpac Life owed an obligation of confidence to the Trustees. 3. I am satisfied that Westpac Life did owe a duty of confidentiality to the Trustees. 4. This is illustrated by an exchange of correspondence between Westpac Life's solicitors, MinterEllison, and the Trustees' solicitors, Allens, on 10 and 11 September 2020. 5. On 10 September 2020 MinterEllison wrote: "[Westpac Life] has its own views as to why the [Trustees] appointed AIA instead of [Westpac Life] which resulted in the Group Policies being terminated. Although [Westpac Life] denies any obligation to provide an explanation to RGA, we are instructed to ask the [Trustees] to provide the reasons why it determined to appoint the new insurer, resulting in the termination of the Group Policies." 1. Allens replied: "The Trustees' reasons for their decision concerning the Group Policies, and … for appointing AIA in place of [Westpac Life], are confidential. To the extent that the Trustees may have previously given [Westpac Life] any information that may reveal anything about those reasons, that information was given to [Westpac Life] in confidence and [Westpac Life] must not disclose that information to anyone else without the Trustees' consent. As you also know, the Trustees have consented to a number of documents being given to RGA provided they are covered by confidentiality undertakings from RGA in terms approved by the Trustees." 1. Mr Braham drew attention to Art 22 which, relevantly, provides: "Confidentiality 22.1 Each Party acknowledges that during this Treaty, it will have access to Confidential Information. 22.2 A Party is entitled to use the other Party's Confidential Information only for the purpose of performing its obligations under this Treaty and is entitled to disclose the other Party's Confidential Information only with the other Party's prior written consent." 1. Mr Braham submitted that, by these provisions, the parties had in effect agreed to a code dealing with confidentiality and thus bespoke their intention that the qualification in Art 20.2 concerning "any legal obligation to the contrary" should not include any obligation of confidence. 2. I do not think this is correct. Article 22 is directed to confidentiality of RGA and Westpac Life, as parties to the Treaty. 3. The qualification in Art 20.2 is directed to a different matter, namely legal obligations by one or other of the parties to the Treaty to third parties. 4. In my opinion, the reference in Art 20.2 to "any legal obligation to the contrary" is apt to include any obligation of confidence and, accordingly, Westpac Life's obligation to provide RGA with copies of its Records was subject to that obligation. 5. Article 20.2 does not specify precisely how contrary legal obligations might impact on a party's obligations to produce documents. 6. However, in my opinion, the existence of such contrary legal obligations is a matter relevant to the reasonableness of the request and to be taken into account when considering that aspect of the matter The accrued rights point 1. Mr McHugh submitted that the effect of Westpac Life's letter of 29 May 2020 is that the Treaty is now at an end and that it follows that RGA no longer has an entitlement under Art 20.2 to make a request for documents. 2. I do not accept that submission. 3. Article 19 of the Treaty deals with its termination. 4. Article 19.1 provides that the Treaty terminates automatically in relation to the Policies when the Policies are "cancelled". 5. Article 19.10 then makes detailed provision for the consequences of the Treaty terminating. There is not included in that detailed list of consequences any reference to Art 20.2. 6. That suggests that the parties did not intend that their entitlement to inspection and production of Records would cease upon termination of the Treaty. 7. It appears to me unlikely that the parties would have so intended. The consequence would be that where, as here, there is a controversy concerning termination of the Treaty, a party's entitlement to inspect or seek Records relevant to that matter would be eliminated. 8. In any event, if the Treaty has been terminated, it is only in respect of the Policies. The Discretion point 1. Mr McHugh submitted that, in any event, the Court would not order production of documents under Art 20.2 as this would involve making an order for specific performance or an order in the nature of a mandatory injunction requiring ongoing curial supervision and creating a sanction of contempt. 2. But the parties must have contemplated that they be able to enforce the promises made in Art 20.2. Enforcement of those promises could only come about as a result of an order that the promises be fulfilled. A claim for damages would be impossible to sustain as, on the hypothesis that documents had been sought but not produced, the party claiming production of documents could not know what damage it had thereby sustained. 3. The Court regularly makes orders requiring parties to produce categories of documents when it issues a subpoena or makes an order for discovery. 4. Were Mr McHugh's submissions to be correct, it would in effect render Art 20.2 unenforceable. 5. I turn now to RGA's alternative claim for preliminary discovery. Preliminary discovery 1. UCPR r 5.3(1) provides: 5.3 Discovery of documents from prospective defendant (1) If it appears to the court that-- (a) the applicant may be entitled to make a claim for relief from the court against a person ("the prospective defendant" ) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and (b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and (c) inspection of such a document would assist the applicant to make the decision concerned, the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person's possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief. 1. Each of the elements in subparagraphs (a), (b) and (c) must be made out before preliminary discovery will be ordered; and the Court must also be satisfied that an order is appropriate as a matter of discretion. [15] 2. Here, the question is whether the requirements of r 5.3(1)(a) have been satisfied, namely: 1. whether it appears that RGA "may be entitled to make a claim" against Westpac Life; and 2. whether RGA has made "reasonable enquiries"; 3. whether RGA, having made "reasonable enquiries", is "unable to obtain sufficient information to decide whether or not to commence proceedings" against Westpac Life. Does it appear that RGA may be entitled to make a claim for relief? 1. The claim for relief is in relation to a contravention by Westpac Life of Art 1.5 and would, presumably, be a claim for damages. 2. Satisfaction of this requirement requires more than mere assertion and more than suspicion or conjecture. [16] 3. I am not satisfied that this has been established. 4. As I have set out above, there is no hint in the documents before me that Westpac Life has contravened Art 1.5. 5. In my opinion it is a matter of pure speculation that Westpac Life may have done so. Has RGA made reasonable enquiries? 1. The next question is whether RGA has made reasonable inquiries but is unable to obtain sufficient information to decide whether to commence proceedings. 2. In my opinion this requirement has also not been established. 3. Glencore International AG v Selwyn Mine Ltd [17] Lindgren J said: "…while a respondent to an application for preliminary discover is entitled to remain passive, the applicant must place before the Court all of the evidence already available to it relevant to the sufficiency of the information it possesses to enable a decision to be made whether to commence the proceeding. The applicant must not hold back information in aid of satisfying [the second limb of r 5.3(1)(a)]". [18] 1. RGA has not placed before the Court the 30 June 2020 Group Insurance Takeover Deed and Transitional Services Agreement 2. Without seeing those documents, I am not in a position to say whether RGA has made reasonable enquiries or that it is unable to obtain sufficient information to make a decision to commence proceedings. Preliminary discovery should be refused 1. For those reasons, I refuse to order preliminary discovery. Conclusion 1. RGA's Summons should be dismissed with costs. 2. Annexure A (84482, pdf) ********** Endnotes 1. BT Funds Management Ltd, BT Funds Management No 2 Ltd and Westpac Securities Administration Ltd. 2. BT Funds Management Ltd. 3. Again, BT Funds Management Ltd. 4. An issue relevant to one of Westpac Life's contentions concerning its obligations under Art 20.2: see [80]-[92] below. 5. It is not clear whether this email was sent before or after RGA received Westpac Life's letter of 29 May 2020. 6. The letter is in terms addressed to one of the Trustees but was evidently intended to be addressed to Westpac Life. 7. Despite the fact the letter contained a denial, in terms, that Westpac Life had acted in breach of Art 1.5. 8. T12.29. 9. T29.27. 10. In [9] and [10] of the Appendix. 11. At [16] and [41] above. 12. T25.11. 13. T73.12. 14. T30.49. 15. St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147 at [25]-[26] (Hely J); cited with approval in O'Connor v O'Connor [2018] NSWCA 214 at [24]-[29] (Simpson AJA; McColl & Macfarlan JJA agreeing). 16. St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147 at [26] (Hely J); Hatfield v TCN Nine Pty Ltd (2010) 77 NSWLR 506; [2010] NSWSC 69 at [47]-[50] (McColl JA); O'Connor v O'Connor [2018] NSWCA 214 at [24]-[29] (Simpson AJA; McColl & Macfarlan JJA agreeing). 17. [2005] FCA 801; (2005) 223 ALR 238. 18. Ibid at [15]. 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: 23 September 2020