AMP Ltd v Chubb Insurance Australia Ltd; (s 50 summary)

1. [1]

   HER HONOUR: By motion filed on 8 July 2025, the plaintiffs (AMP) sought to present evidence of the contents of some 395 lever-arch folders of documents in the form of a summary under s 50 of the Evidence Act 1995 (NSW).

2. [2]

   The admissibility of the summary was disputed by the 28 defendants (the insurers), who are legally represented in four groups: the first and second defendants (Chubb), the third and co-represented defendants (AIG), the ninth and co-represented defendant (Allianz) and the tenth and co-represented defendants (Lloyd’s).

3. [3]

   Since the motion was filed, some progress has been made:

4. [4]

   To explain, the last-mentioned ‘piece of progress’ deals with AMP’s proposed tender of an entire client to prove a negative, being that no advice was given. The insurers, effectively, accept that it is not necessary to do this. Given the insurers’ agreement to this course, AMP now rely on the first portion of the summary (Item 1) as an aide memoire only.

5. [5]

   As to whether the balance of the revised s 50 summary should be admitted, AMP relied on the evidence of solicitor Katharine Cahill. Lloyd’s relied on the evidence of solicitor Craig McIver. Additional legal correspondence was tendered. I was also provided with one of the many client files sought to be summarised, to illustrate the task undertaken.

Section 50, Evidence Act

1. [6]

   Section 50 of the Evidence Act provides:

2. [7]

   Section 47(1) of the Evidence Act defines “document in question” as “a document as to the contents of which it is sought to adduce evidence”.

3. [8]

   A ‘summary’ for the purposes of s 50 need not summarise the entire contents of the documents in question but the evidence sought to be extracted from the documents: In the matter of Great Southern Managers Australia Ltd v Gunns Plantations Ltd [2011] VSC 380: at [67] (Davies J). But a summary may not meet the requirements of s 50 if it interprets the contents of the underlying documents, involves the application of an exercise of judgement, is a submission or gives expert opinion: In the matter of Idylic Solutions Pty Ltd v Hobbs [2012] NSWSC 568 at [83], [91], [97] and [102] Ward J (as the President then was).

4. [9]

   In Botany Bay City Council v Minister for Planning and Infrastructure (No 2) [2014] NSWLEC 101, Beech-Jones AJ (as his Honour then was) considered that Ward J’s observations in Idylic should be treated with some caution where, at [12]:

5. [10]

   While his Honour noted that the proposed summary considered by Ward J in Idylic involved the author “exercising a significant level of judgment” as to its content (at [10]), Beech-Jones AJ continued at [13]:

6. [11]

   By way of comparison, in Idylic, ASIC sought to adduce evidence of the contents of over 6,000 documents by two summaries: one prepared by an ASIC investigator and the other by the liquidator of the managed investments schemes which were the subject of the proceedings. The summary prepared by the ASIC investigator was generally acceptable, save that some of the spreadsheets seemed to incorporate calculations based on material that was not evident on the face of the underlying documents: at [86]. Greater difficulty was encountered with the summary prepared by the liquidator, who included a commentary or explanation of his summary (which her Honour treated as a submission) and drew conclusions from the documents as to whether certain deposits should be treated as investments, involving the application of judgment. That portion was not admissible under s 50 either.

7. [12]

   In Botany Bay City Council, the summary compiled details of approved developments, which were said to be non-compliant with a design code. The author of the summary identified each apartment on the approved plans, together with the apartment size, the number of bedrooms, the type of apartment (corner, cross-through or single aspect) and which of the 15 types of apartments identified in the design code it was. Where the type of apartment under the design code was not clear, the author attempted to categorise the apartment. Notwithstanding that this involved an element of judgement, Beech-Jones AJ admitted this portion of the summary. However, the author proceeded to state whether the apartment complied with the design code or SEPP 65. His Honour rejected those portions of the summary, which were treated as a submission.

Consideration

1. [13]

   It is fair to say the AMP’s proposed summary bears stronger similarities to the summaries sought to be tendered by ASIC in Idylic than the list of apartments in Botany Bay City Council. But the short point is that, AMP having reduced its proposed tender from 395 lever-arch folders to 16 lever-arch folders, it is no longer the case that “it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question”: s 50(1). In significant Commercial List litigation, of which this case is clearly one, such a volume of material is routinely digested by this Court.

2. [14]

   But, beyond this, the proposed summary does stray into interpretation of the documents in question, expressions of opinion or submissions. Turning to the proposed s 50 summary, AMP’s solicitors have reviewed some 150 client files. The solicitor has then provided a response to the following questions:

3. [15]

   Question 3.5.1 involves an exercise of judgement by the person reading the client file and a conclusory statement following upon that exercise of judgement: does the client file contain “evidence of a remediation process having considered” various matters when “determining the compensation?”. The summary does not purport to summarise the contents of the documents in question in a way illustrated in the case law. Rather, the answer provides the solicitor’s view as to whether the contents of the file demonstrate that these matters have been considered and taken into account. This involves the exercise of judgement or may be regarded as a submission or, perhaps, an expert opinion. In short, the summary contains a legal assessment by the solicitor reviewing the file.

4. [16]

   The same may be said for question 3.6.1, which asks the solicitor to say whether they consider that there is “evidence” of particular matters in the client file. Even more problematic is question 3.6.5, which asks whether “the remediation calculated on the basis that the client was to be put back in the position they would have been had the payment of fees (in return for no service) not occurred”. To answer that question “yes” or “no” does not involve the summary of the contents of a document, but the solicitor’s assessment as to how the AMP officer considering remediation, and the amount of remediation, went about their task.

5. [17]

   Where AMP proposes to tender the 16 lever-arch folders in any event, I consider that the proposed summary should not be admitted under s 50. The document can certainly be put before the Court as an aide memoire. I note that the insurers are prepared to continue to work towards agreement in respect of some portions of the document. This may well be a work in process as the trial progresses. For these reasons, the plaintiffs’ Notice of Motion filed on 8 July 2025 is dismissed.