FEDERAL COURT OF AUSTRALIA
Quach v MLC Life Limited (No 5) [2020] FCA 1134
File number: ACD 18 of 2019 Judgment of: RARES J Date of judgment: 31 July 2020 Legislation: Service and Execution of Process Act 1992 (Cth) Cases cited: Australian Securities & Investment Commission v Southcorp Limited (2003) 46 ACSR 438
Dr Michael Van Thanh Quach v MLC Life Limited (No 1) [2019] FCA 1149
Dr Michael Van Thanh Quach v MLC Life Limited (No 4) [2020] FCA 532
Health Care Complaints Commission v Quach [2015] NSWCATOD 2
Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10
Division: General Division Registry: Australian Capital Territory National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 26 Date of hearing: 31 July 2020 Counsel for the Applicant: The applicant appeared for himself Counsel for the Respondent: Mr N Olson Solicitor for the Respondent: TurksLegal ORDERS
ACD 18 of 2019 BETWEEN: DR MICHAEL VAN THANH QUACH
Applicant
AND: MLC LIFE LIMITED
Respondent
ORDER MADE BY:
RARES J
DATE OF ORDER:
31 JULY 2020
THE COURT ORDERS THAT:
1.The interlocutory application filed on 14 July 2020 be dismissed.
2.The applicant pay the costs of the respondent on the interlocutory application filed on 14 July 2020 on an indemnity basis.
3.The applicant file and serve any expert reports and outlines of further lay evidence on which he proposes to rely on or before 25 September 2020.
4.The matter be listed for a case management hearing on 2 October 2020.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J
This is yet another application by Michael Quach, the applicant. He seeks that nine subpoenas addressed to third parties issued at the suit of his disability policy insurer, the respondent, MLC Life Limited, either should be set aside, or that documents, the subject of the subpoenas, should not be available for inspection by MLC because of his claim that he has legal professional privilege over them.
Background
The history of the litigation to date has been set out in earlier judgments and need not be repeated beyond what follows. Mr Quach claims that, under the policy, he had a right to indemnity because he has been unable to work on the basis, as he asserts in his further amended statement of claim, that “an allegation of ‘illness’ by way of impairment was made by the New South Wales Medical Board”, dating back to 2008.
On 1 August 2019, Mr Quach appeared before Griffiths J to set aside parts of 10 subpoenas that MLC had issued to third parties and himself. He based his present claim to set aside the nine subpoenas on what his Honour had said in his reasons on that occasion in Dr Michael Van Thanh Quach v MLC Life Limited (No 1) [2019] FCA 1149 at…
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- Case
- [2020] FCA 1134
- Decision Date
CaseChat Overview and Summary
The court dismissed Mr Quach’s application, finding that none of his arguments had merit. It was established that the documents sought by the subpoenas were not privileged, as they were either business records produced in the ordinary course of business or reports that had already been used in previous proceedings, which resulted in an implied waiver of privilege. The court referred to previous case law, notably Australian Securities & Investment Commission v Southcorp Limited, to clarify that documents generated by experts for the purpose of forming opinions or reports do not attract privilege. The court concluded that there was no conceivable claim for legal professional privilege over the subpoenaed documents, as they were either publicly available records or had already been disclosed in other litigation.
As a result, the court ordered that Mr Quach’s interlocutory application be dismissed. Additionally, the court ruled that Mr Quach should pay the costs of the respondent on an indemnity basis, reflecting the lack of merit in his application. The court further mandated that Mr Quach file and serve any expert reports and outlines of further lay evidence he intended to rely on by a specified date. The matter was subsequently listed for a case management hearing. These orders were aimed at ensuring the proper conduct of the litigation and the timely disclosure of relevant evidence.
Orders
Orders of the court
1. The interlocutory application filed on 14 July 2020 be dismissed.
2. The applicant pay the costs of the respondent on the interlocutory application filed on 14 July 2020 on an indemnity basis.
3. The applicant file and serve any expert reports and outlines of further lay evidence on which he proposes to rely on or before 25 September 2020.
4. The matter be listed for a case management hearing on 2 October 2020.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Mr Quach also noted that he had filed an application for leave to appeal from Griffiths J’s orders made on 24 April 2020 which has not yet been determined. Consideration In my opinion, none of Mr Quach’s arguments should be accepted. Griffiths J’s reasons in Quach (No. 1) [2019] FCA 1194 at [5]-[6] have nothing whatever to do with the current subpoenas issued in January 2020 addressed to the individual practitioners to produce the documents sought. In Australian Securities & Investment Commission v Southcorp Limited (2003) 46 ACSR 438 at 442 [21] Lindgren J explained why these materials are not privileged, saying, relevantly:(3) Documents generated unilaterally by the expert witness, such as working notes, field notes, and the witness's own drafts of his or her report, do not attract privilege because they are not in the nature of, and would not expose, communications: cf Interchase [Corp Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 1) [1999] 1 Qd R 141] at 161–2 per Thomas J.(4) Ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to in (1) and (2) above, at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents; cf Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 481; 69 ALR 31 at 34 per Gibbs CJ, CLR 487–8; ALR 38–9 per Mason and Brennan JJ, CLR 492–3; ALR 42–3 per Deane J, CLR 497–8; ALR 46–7 per Dawson J; Goldberg v Ng (1995) 185 CLR 83 at 98 ; 132 ALR 57 at 66 per Deane, Dawson and Gaudron JJ, CLR 109; ALR 75 per Toohey J; Instant Colour Pty Ltd v Canon Australia Pty Ltd [1995] FCA 870; BC9506842 Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89; BC200300344 at [46].(5) Similarly, privilege cannot be maintained in respect of documents used by an expert to form an opinion or write a report, regardless of how the expert came by the documents; Interchase at 148–50 per Pincus JA, at 161 per Thomas J.(emphasis added) None of the addressees of those subpoenas raised any claim of legal professional privilege or other objection to production of the documents subpoenaed and each has produced them to the Court. Mr Quach attended on the relevant practitioners, following which they prepared reports about him. Those reports were used in evidence in the regulatory proceeding. There is no possible basis to support a claim that Mr Quach has legal professional privilege over the doctors’ records or reports created and tendered in any of those proceedings. Privilege no longer attached to any such reports once the reports themselves were deployed in evidence. Moreover, the material underlying the expert opinions expressed and statements of fact in those reports would also appear to be relevant to the issues in this proceeding and not privileged: Southcorp 46 ACSR at 442 [21].