New South Wales District Court CITATION: Nirmal Singh Kandola v Bhupinder Sing Rai [2008] NSWDC 22 HEARING DATE(S): 21 February 2008 EX TEMPORE JUDGMENT DATE : 21 February 2008 JURISDICTION: Civil JUDGMENT OF: Rolfe DCJ DECISION: See paragraph 12 of Judgment CATCHWORDS: Motor Vehicle Accident - Defendant refused indemnity on the basis that incident outside cover of Third Party Policy - Claim of Privilege made by Insurer over documents produced on subpoena - Consideration of Joint Privilege, Common Interest Privilege and Shared Interest Privilege - Exercise of Court's discretion Nominal Defendant v GLG Australia Pty Ltd (2006) HCA 11 CASES CITED: Mercantile Mutual Insurance (NSW Workers' Compensation) Limited v Murray (2004) NSWCA 151 Marcus v Provincial Insurance Company Limited (unreported, Supreme Court of NSW, Clarke, J, 11/5/83) PARTIES: Nirmal Singh Kandola (Plaintiff) Bhupinder Singh Rai (Defendant) FILE NUMBER(S): 08/07 (Coffs Harbour) SOLICITORS: Mr Egan (Plaintiff) Mr Smith (Defendant) JUDGMENT (EX TEMPORE) 1 HIS HONOUR: Before the court is a notice of motion dated 18 February in which the defendant applicant seeks access to certain documents produced to the court by Allianz Australia Insurance Limited, the respondent to the motion which is an intervenor in the proceedings. 2 Since the motion was filed the area of dispute in terms of access has been confined to documents 9, 11, 12, 16 to 25 inclusive, 27, 28, 29 and 31 in the list which is annexure A to Ms van Doort's affidavit sworn on 20 February 2008. 3 The position is that the court has been told that the insurer formally denied to indemnify its insured, the defendant, on 21 March 2007 as a result of the decision of the High Court in Nominal Defendant v GLG Australia Pty Ltd (2006) HCA 11. 4 I have been invited by the parties to look at the documents in dispute. I am satisfied that, after the decision in GLG was handed down on 5 April 2006, the question of indemnity by the insurer of the insured arose within the minds of claims officers and the like within the office of the insurer. Shortly thereafter (and I cannot be precise about the date), I am satisfied that document 28 raised that issue. I am also satisfied that documents 29 and 31 also deal with the question of whether or not indemnity should be extended to the defendant. Clearly, on the basis of the way in which the case had been conducted, that was simply because either there was an issue as to whether or not this was a motor vehicle accident or an accident that would take the incident outside the scope of the third party policy provided by the insurer to the defendant under and in accordance with the Motor Accidents legislation. 5 As to the other remaining documents, it seems to me that, bearing in mind what the Court of Appeal said in Mercantile Mutual Insurance (NSW Workers' Compensation) Limited v Murray (2004) NSWCA 151, one has to approach this matter by way of a two step process. 6 The first step is to identify the dominant purpose for the creation of the documents. Here, that was clearly for the purpose of assessing the claim made by the plaintiff against the defendant. As a consequence, I am satisfied that the documents are subject to a claim for privilege. 7 The second step is to determine who is entitled to claim the privilege in the documents. Obviously the insurer is entitled to claim the privilege. The question is whether the defendant, as the insured, is also entitled to access to the documents for another reason. 8 It seems to me that the documents were not and cannot be said to form the basis of a joint privilege because none of them was created after any proceedings were commenced when a defence or an appearance was filed on behalf of the defendant by the insurer. 9 However, it seems to me that both the defendant and the insurer had a common interest in the materials that had been created because they went to the validity of the plaintiff's claim against the defendant and the defendant himself has an interest in that very issue because his interest is whether or not he is covered under the policy of insurance. 10 In none of those documents is there any issue raised which might go to the position concerning the indemnification by the insurer of the defendant other than in documents numbered 28, 29 and 31 and in my opinion the insured should not have access to those documents but he should otherwise have access to numbers 9, 11, 12, 15 to 25 inclusive and 27. 11 In coming to the above conclusion, I have had regard to what Clarke J did in Marcus v Provincial Insurance Company Limited (unreported, Supreme Court of New South Wales, Clarke, J, 11 May 1983). I am not sure how binding what Clarke J said in that case is, given that there is no discussion in it of the joint interest and common interest privilege matters dealt with by the Court of Appeal in the Mercantile Mutual Insurance case. 12 Be that as it may, the position Clarke J was dealing with in that case is entirely different from the one that I am looking at. There is no suggestion in the documentation that the defendant might have done something in coordination with the plaintiff. The documents simply go to the normal investigations that would be made once a claim of the sort made by the plaintiff was made and indeed much of these documents deal with the question going to whether or not the plaintiff had given a satisfactory explanation concerning the delay in making the claim and so on as he is required to do under the legislation. Accordingly, in my opinion, there is no basis for me to exercise a discretion if one is available along the lines suggested by Clarke J in the Marcus decision in favour of the insurer in this case. I therefore direct that the documents that I have set out in the judgment be made available to the defendant, that the other ones, being numbers 28, 29 and 31 be placed back in the packet that was handed up and returned. (This Judgment has been edited) ********** 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.