ACD 20 of 2020 ACD 38 of 2020 ACD 2 of 2021 ACD 14 of 2021 ACD 19 of 2021
Judgment of:
COLLIER, PERRY AND THOMAS JJ
Date of judgment:
21 December 2022
Catchwords:
INSURANCE – appeal from decision of a single Judge of the Federal Court of Australia – where appellant submits the respondent had breached s 13 of the Insurance Contracts Act 1984 (Cth) – where appellant made a claim for total and permanent disability caused by injury or sickness and claims he is unable to practise in his profession – where appellant had not provided insurer with any medical evidence supporting the claim and had not complied with policy terms - where appellant submits he was not afforded a fair hearing at first instance – where the appellant submits apprehended bias on behalf of the primary Judge – where appellant submits evidence of the respondent was inadmissible before the primary Judge – where appellant submits that the respondent could not establish ‘jurisdictional fact’ in the Court below - appeal dismissed
PRACTICE AND PROCEDURE – application for leave to appeal from interlocutory decisions of a Judge of the Federal Court of Australia – applicable principles - whether decision of primary Judge is affected by sufficient doubt as to necessitate its reconsideration – whether substantial injustice would result if leave were refused supposing the decision to be wrong - applications dismissed
PRACTICE AND PROCEDURE – application to adduce evidence not before the primary Judge – rule 36.57 of the Federal Court Rules 2011 (Cth) – section 27 of the Federal Court of Australia Act 1976 (Cth) – applicable principles - whether the evidence had been adduced before the primary Judge would have very probably resulted in a different outcome – whether the appellant was able to demonstrate that he was unaware of the evidence and could not have been with reasonable diligence made aware of the evidence – applications refused
PRACTICE AND PROCEDURE – application for stay of costs order – applicable principles – application dismissed
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Quach v MLC Limited [2022] FCAFC 202
Case
[2022] FCAFC 202
Decision Date
CaseChat Overview and Summary
In the matter of Quach v MLC Limited, the appellant sought to challenge a decision of the Federal Court of Australia regarding an insurance claim. The appellant, Quach, claimed total and permanent disability due to injury or sickness, preventing him from practising his profession. However, the respondent, MLC Limited, contended that Quach had failed to provide the necessary medical evidence and had not complied with the policy terms. Additionally, Quach alleged that he had not received a fair hearing and that there was an apprehension of bias on the part of the primary judge. Furthermore, Quach argued that certain evidence presented by MLC Limited was inadmissible before the primary judge. The appeal was dismissed by the court.
The central legal issues before the court were whether Quach had a valid claim under section 13 of the Insurance Contracts Act 1984 (Cth) and whether there were any procedural errors in the primary judge's handling of the case. The court also had to consider whether Quach was entitled to adduce new evidence and whether the primary judge's decision was affected by a sufficient doubt to warrant reconsideration.
The court found that Quach's claim was without merit, as he had not provided the necessary medical evidence and had not complied with the policy terms. The court also dismissed Quach's claims of procedural errors, finding no evidence of bias or unfairness in the primary judge's handling of the case. The court further held that the evidence Quach sought to adduce was not such that it would have very probably resulted in a different outcome. The court's reasoning was that the discretion to receive further evidence on appeal is not constrained by common law rules governing the grant of new trials on the ground of discovery of "fresh evidence." The court found that Quach's complaints about the timing of the publication of the primary judgment's written reasons and the opportunity to amend his notice of appeal were unfounded.
ORDERS:
1. The appellant’s interlocutory applications filed on 2 September 2021, 6 December 2021 and 9 December 2021 in proceeding ACD19/2021 be dismissed.
2. The appellant’s notice of appeal filed on 22 March 2021 in proceeding ACD19/2021 be dismissed.
3. The appellant pay the respondent’s costs to be taxed if not otherwise agreed.
Orders
Orders of the court
1. The appellant’s interlocutory applications filed on 2 September 2021, 6 December 2021 and 9 December 2021 in proceeding ACD19/2021 be dismissed.
2. The appellant’s notice of appeal filed on 22 March 2021 in proceeding ACD19/2021 be dismissed.
3. The appellant pay the respondent’s costs to be taxed if not otherwise agreed.
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
Rule 36.57 of the Federal Court Rules provides:Further evidence on appeal(1) A party may apply for the Court to receive further evidence on appeal.(2) The application must be filed at least 21 days before the hearing of the appeal and be accompanied by an affidavit stating the following:(a) briefly but specifically, the facts on which the application relies;(b) the grounds of appeal to which the application relates;(c) the evidence that the applicant wants the Court to receive;(d) why the evidence was not adduced in the court appealed from.(3) The application and the affidavit must be filed as follows:(a) if the appeal is to the Full Court--4 copies;(b) if the appeal is to a single Judge--2 copies.(4) Any other party to the appeal who wants to adduce evidence on the appeal must file an affidavit at least 14 days before the hearing of the appeal.Note: Section 27 of the Act allows the Court to receive further evidence on appeal. Recently in Australia Bay Seafoods Pty Ltd v Northern Territory of Australia [2022] FCAFC 180 the Full Court reiterated principles governing the admission of further evidence in appellate proceedings in the Court. In particular the Court observed:[118] The principles which guide the exercise of the Court’s discretion under s 27 of the FCA Act were restated recently by Griffiths and White JJ in Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [16] (cited with approval by the Full Court in District Council of Streaky Bay v Wilson (2021) 287 FCR 538 at [149] ):… Drawing on authorities including CDJ v VAJ [1998] HCA 67; 197 CLR 172; Cottrell v Wilcox [2002] FCAFC 53; Sobey v Nicol and Davies, in the Matter of Guiseppe Antonio Mercorella [2007] FCAFC 136; 245 ALR 389; Watson Australian Community Pharmacy Authority [2012] FCAFC 142; 206 FCR 365 and Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3, they may be summarised as follows:(1)The discretion conferred by s 27 is unfettered, save that it must be exercised judicially and according to principle.(2)The power to receive further evidence is remedial and its primary purpose is to empower the Court to receive further evidence to ensure that proceedings do not miscarry.(3)The power is not constrained by common law rules that govern the grant of new trials on the ground of discovery of “fresh evidence”.(4)The following two considerations will normally be relevant to the exercise of the discretion:(i)the further evidence is such that, had it been adduced at trial, the result would very probably have been different; and(ii)the party seeking to adduce the evidence demonstrates that it was unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence.(5)The interests of third parties and the public at large may outweigh a party’s interest in the finality of litigation. For example, a greater willingness to receive further evidence on appeal has been apparent in bankruptcy matters which affect the interests of creditors generally.
Decision
Reasons for decision
This ground of appeal has no merit.CONCLUSION It follows that the appeal should be dismissed. Finally we note that Rares J delivered judgment ex tempore, and subsequently published written reasons revised from the transcript. There is no issue concerning the timing of the publication of his Honour’s written reasons, or that that timing in any way prejudiced the appellant filing his notice of appeal. Nonetheless the appellant complains that he was denied the opportunity to amend his notice of appeal on receiving the written reasons of Rares J in the primary judgment. The appellant referred to email correspondence between himself and the Federal Court Registry in Canberra. Examination of the Court file in the appeal indicates that:·The appellant emailed the registry on 12 April 2021, relevantly enquiring:Would you be so kind as to grant leave to amend the Notice of Appeal ·On 12 April 2021 a client services officer of the Court emailed the appellant as follows:I refer to your email below and advise that you should refer to Rule 36.10 of the Federal Court Rules in relation to an amendment of your appeal. Rule 36.10 of the Federal Court Rules provides:Amendment to notice of appealAn appellant may, without the Court's leave, amend a notice of appeal during the period of 28 days after filing the notice of appeal by filing a supplementary notice of appeal in accordance with rule 36.01. The appellant filed his notice of appeal on 22 March 2021. The client services officer directed the appellant to r 36.10. As at 12 April 2021 the appellant was within time to file a supplementary notice of appeal. He did not do so, presumably because he chose not to do so. No denial of procedural fairness to the appellant is apparent in this respect. Costs should follow the event.