Confidential tip to an insurer not protected: claims handling is a business, not a profession

In MLC Limited v Preuss [2026] NSWSC 1424 the Supreme Court of New South Wales (Kunc J, Equity Division, Applications List) dealt with an insurer's attempt to keep a confidential informant's emails, and the informant's identity, from a man whose disability claim it was disputing, on the basis that they were "protected confidences" under ss 126A and 126B of the Evidence Act 1995 (NSW). The Court held the insurer must produce the material without redaction, apart from documents covered by client legal privilege. The important point is that this protection needs a relationship between the person who confides and the person receiving the confidence, and that receiving information while handling insurance claims is not acting in a "professional capacity". All paragraph references below are to the judgment.

Why it matters: People often assume that telling an organisation something "in confidence" keeps it secret in later court proceedings. Confidentiality alone is not enough: the communication must be made within a relationship in which the recipient acts in a genuine professional capacity, and insurance claims handling does not qualify ([2], [23]–[27], [34]–[35]).

At a glance

• Court and level: Supreme Court of New South Wales, Equity Division, Applications List (single judge, first instance)
• Area of law: Evidence; privileges; professional confidential relationship privilege (protected confidences)
• Decision type: Ex tempore (oral) interlocutory ruling on producing documents, 3 November 2026 (hearings 30 October and 2 November 2026)
• Outcome: The communications were not protected confidences; the insurer must produce the material caught by the notice without redaction, other than documents covered by client legal privilege ([4], [36])
• Test applied: Statutory construction of the definition of "protected confidence" in s 126A, read by text, context and purpose ([23])
• Costs: The judgment does not deal with costs

🧩 Facts and Issues

Background

The plaintiff, MLC Limited (now known as Acenda), is an insurer. The defendant was an insured member of a group superannuation scheme that provided total and permanent disablement (TPD) cover ([1]).

In February 2023 the member claimed a TPD benefit of $400,000 under the policy ([8]). In August 2023 the insurer accepted the claim on the information it then had and paid the benefit to the trustee of the member's superannuation fund ([9]).

Between 1 September and 26 October 2023, the insurer received communications from a person the judgment calls "the confider". The confider alleged that the member had been working while claiming to be disabled, and asked that their name be kept confidential ([9]). These were allegations only, and the Court made no findings about them. The insurer reopened its assessment, asked the trustee to hold the payment ([9]) and carried out its own investigations ([10]).

The communications were mainly emails from the confider to a generic insurer inbox, or between the confider and a case consultant in the insurer's case management section ([13]). That they were confidential was not in dispute ([2]).

How the case got here

• The member started proceedings by summons in November 2023. The insurer started the present proceedings in April 2024, seeking declarations that it is not required to pay the benefit ([10]).
• In December 2024 the member issued a notice to produce (a formal demand that a party bring documents to court) for the insurer's claims file covering 15 August to 12 November 2023 ([11]).
• The insurer produced the file but redacted (blacked out) the confider's communications and material it said was covered by legal professional privilege ([11]).
• In September 2026 the insurer moved for relief against producing both categories. The Court resolved the legal professional privilege claims during argument, without reasons ([12]).
• It was urgent because of a mediation that week ([3]).

What each side argued

• The insurer argued that the "person" receiving the communications was the insurer itself, acting through its staff. The Court assumed, without deciding, that a corporation can be a "person" for these provisions ([15]).
• The insurer argued that the relevant relationship was between the insurer and the superannuation trustee, which legally owned the policy ([15]).
• The insurer argued that its "profession" was providing claims handling and settlement services to the trustee, judged by the qualifications of a lead case consultant ([15]).
• The member argued that the lead case consultant was not the right person to look at ([29]), and that disclosure was unlikely to harm the confider, a point the Court did not need to decide ([7]).

The issues

• Between whom must the "relationship" in the definition of "protected confidence" exist ([23])?
• Was the insurer "acting in a professional capacity" when it received the communications ([27])?

⚖️ Applicable Law – Legislation, Rules and Principles

• Evidence Act 1995 (NSW), s 126A. A "protected confidence" is a communication made by a person in confidence to another person (the "confidant") "in the course of a relationship in which the confidant was acting in a professional capacity", where the confidant was under an express or implied obligation not to disclose it. That obligation can be inferred from "the nature of the relationship between the person and the confidant" ([5]). "Protected identity information" is information that would reveal who made a protected confidence ([5]).
• Evidence Act 1995 (NSW), s 126B. The court may direct that evidence not be adduced (put before the court) if it would disclose a protected confidence, a document recording one, or protected identity information. It must do so if likely harm to the confider outweighs the desirability of the evidence being given ([5]).
• Evidence Act 1995 (NSW), s 131A. It was not disputed that s 131A makes s 126B apply to the notice to produce ([14]).
• Text, context and purpose. The Court paraphrased the purpose, drawn from the second reading speech (the minister's speech introducing the law), as protecting confidences imparted in professional relationships where confidentiality is integral ([16], [23]).
• What is a "profession"? The Court drew on an extrajudicial speech by former Chief Justice Gleeson listing four attributes of a profession: special skill based on organised learning; usually some exclusive right to provide the service; a public commitment to serve the community that constrains self-interest; and substantial self-regulation ([21]). The Court described the third attribute as the "requirement of selflessness" ([22]).

📌 Authorities Relied On

• NRMA v John Fairfax [2002] NSWSC 563: Master Macready held the protection could apply to journalists and that services need not be provided to the confider ([17]). Kunc J noted the journalist point was overtaken by s 126K in 2015 ([19]), and disagreed with [150] of that decision insofar as it overlooked the need for a relationship of the requisite kind ([20]).
• Stephen Odgers SC, Uniform Evidence Law (21st ed, 2026): the second reading speech's examples, and the uncertain scope of "acting in a professional capacity" ([16]).
• The Hon A M Gleeson AC, "Are the Professions Worth Keeping?" (speech, 1999): the attributes of a profession ([21]).

🧠 Analysis

Issue

Were the confider's emails to the insurer, the insurer's internal documents referring to them and the confider's identity protected from production under ss 126A and 126B?

Rule

A protected confidence requires a communication made in confidence in the course of a relationship in which the confidant acts in a professional capacity ([5]). The relationship must be between the confider and the confidant ([23]–[24]), and a "profession" for this purpose has the essential element of selflessness ([22]).

Application

The relationship must be between the confider and the confidant

The Court held that, on its proper construction, the relationship in the definition must be between the person confiding and the person receiving the confidence ([23]). Any doubt is resolved by the definition's own reference to "the nature of the relationship between the [confider] and the confidant" ([24]). The insurer's case accepted there was no such relationship with the confider, which was enough to dispose of the motion ([24]–[25]).

A few unsolicited emails are not a "relationship"

The facts also lacked the substance or mutual intent of a "relationship" at all. What happened was "the unsolicited and gratuitous provision of some alleged information", with two follow-up communications ([25]).

Calling yourself "professional" does not make you a profession

Many occupations call themselves "professional" to signal competence and honesty, but that does not make them a profession for the purposes of the Act ([26]). The categories are not closed, but "professional capacity" must still mean something distinct ([33]).

The insurer received the emails as an insurer, not as a professional

Even if the relationship could be with the trustee, the insurer received the communications as a company whose business is insurance. That is not a profession ([27]).

The wrong employee, and no evidence about the right one

The lead case consultant had only brief involvement; there was no evidence about the qualifications of the case consultant who took over, and the Court refused to infer them ([29]).

Claims handling lacks the element of selflessness

In any event, even assuming in the insurer's favour that the consultant had the relevant insurance industry qualifications ([31]–[32]), claims handling and settlement is not a profession because it lacks selflessness ([30]). It discharges the insurer's legal obligations to its insured, and the Court inferred from common experience that it is carried on in the insurer's own commercial interests, so far as the law allows. The Court stressed that this was "not said as a criticism", only a conclusion of fact ([34]).

By contrast, journalists can meet the test

Journalists, who act in the public interest rather than for their source, can show selflessness through their preparedness to protect their sources ([22]).

Conclusion

The insurer was not acting in a "professional capacity" in any relevant relationship, so the s 126B exclusion did not apply ([35]). The internal documents and the confider's identity fell with the communications ([2], [36]), and the Court did not need to weigh harm to the confider ([7]).

🏛️ Outcome, Orders and Costs

• The insurer must produce to the member the material caught by the notice to produce without redaction ([36]).
• The exception is documents for which the Court upheld the insurer's claims for client legal privilege (privilege protecting confidential lawyer–client communications) ([12], [36]).
• The judgment does not deal with costs.
• The ruling decides nothing about whether the benefit is payable or whether the confider's allegations are true.

🧭 Practical Lessons

• For self-represented litigants: If the other side blacks out documents as "confidential", that is not the end of the matter. It must bring itself within a specific legal protection ([2], [35]–[36]).
• For self-represented litigants: The rules are aimed at relationships like doctor and patient, counsellor and client, or journalist and source, not a tip sent to a business ([16], [25]–[27]).
• For practitioners: When claiming protection under s 126A, identify the relationship between the confider and the confidant, not a relationship between the confidant and someone else ([23]–[24]).
• For practitioners: Lead evidence about the qualifications and function of the person who actually received the confidence. The Court will not infer them from the person's place in an organisation chart ([29]).
• For practitioners: "Professional capacity" needs more than skill and training; ordinary commercial providers will struggle to show selflessness ([22], [30], [34]).
• For practitioners: This single-judge ruling is persuasive rather than binding, but it qualifies NRMA v John Fairfax on the relationship point ([20]).

🧠 Take-Home Lesson

• A communication is not a "protected confidence" just because it was given in confidence ([2], [5]).
• The relationship must be between the confider and the confidant, and unsolicited tips are unlikely to create one ([23]–[25]).
• An insurer handling claims in its own commercial interests is running a business, not acting in a professional capacity ([27], [34]).

"Confidential is not the same as protected. The law shields confidences given within a genuinely professional relationship, not tips sent to a business."

This digest is general information about a published judgment, not legal advice. For advice about your own situation, speak to a lawyer, Legal Aid or a community legal centre.