Quach v MLC Limited

In the Federal Court of Australia, Dr Quach, the appellant, sought to appeal against a decision made by MLC Limited, the respondent, in the primary proceedings. Dr Quach filed an application for leave to appeal and subsequently filed an interlocutory application for security for costs in the event leave to appeal was granted. MLC filed an application for security for costs. A referee was appointed to prepare a report for the Court. The parties filed written submissions and Dr Quach appeared via Microsoft Teams to make oral submissions. Dr Quach sought an order that the Court reject the report in the whole. MLC opposed the application and submitted that the report should be adopted in the whole. The Court was required to decide whether the report should be adopted, varied or rejected. The Court also needed to consider the ancillary orders MLC sought in its interlocutory application.

The Court adopted the report of the referee in its entirety. The Court noted that the report identified and summarised the principles applicable to the exercise of the Court’s discretion in the context of an application under r 28.67 of the Rules. The Court concluded that the report was correct in its analysis of Dr Quach’s submissions and its findings. The Court found that Dr Quach's submissions in support of his contention that the report should be rejected in whole were primarily directed to challenging factual findings made by the referee and by the primary judge in the decision the subject of appeal. The Court found that it was not an appropriate exercise of the Court’s discretion to allow matters agitated before the referee to be re-explored so as to lead to qualification or rejection of the report. The Court further found that the report was based on sufficient factual material to entitle the referee to reach the conclusions she did. The Court concluded that the report should be adopted in the whole and that the appeal should be stayed until security has been provided, or dismissed, if security is not provided within 21 days of entry of the orders.

The Court made the following orders: (1) the report of the referee be adopted in the whole; (2) the appellant provide security for the respondent’s costs in the sum of $39,395, such security to be provided either by way of payment into Court or by provision of an unconditional bank guarantee; (3) the appeal be stayed until the security for costs has been given by the appellant; (4) the appeal be dismissed if security for costs has not been provided by the appellant by 4:00 pm on 10 June 2022; (5) the appellant pay the respondent’s costs in respect of the interlocutory application filed by the appellant on, and dated, 2 May 2022 and the interlocutory application filed by the respondent on 13 September 2021 and dated 8 September 2021; and (6) the Registrar refuse to accept for filing the notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth), lodged by the appellant on 16 May 2022.