FEDERAL COURT OF AUSTRALIA
Quach v MLC Limited (No 6) [2021] FCA 271
File number(s): ACD 18 of 2019 Judgment of: RARES J Date of judgment: 2 March 2021 Catchwords: INSURANCE – life insurance – claim under policy for total and permanent disability caused by injury or sickness because applicant unable to practise profession– where applicant had been deregistered as medical practitioner by Civil and Administrative Tribunal of New South Wales (NCAT) – where NCAT found that applicant suffered from narcissistic personality disorder – where applicant claimed under insurance policy to be totally or partially disabled– where applicant had not provided insurer with any medical evidence supporting claim and had not complied with policy terms – where applicant did not lead any medical evidence that inability to practice caused by any illness or sickness – where applicant claimed NCAT finding binding on insurer and Court – where s 91 of the Evidence Act 1995 (Cth) precluded finding of fact in decision of Australian Court including NCAT being admissible to prove fact so found – applicant otherwise unable to substantiate claim for indemnity under insurance policy– claim that insurer breached s 13 of the Insurance Contracts Act 1984 (Cth) by failing to pay claim – held proceeding dismissed Legislation: Evidence Act 1995 (Cth) ss 4, 8, 91, 136
Government Information (Public) Access Act 2009 (Cth)
Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) ss 139C, 139E
Health Practitioner Regulation National Law Act 2009 (Qld) ss 5, 149
Insurance Contracts Act 1984 (Cth) ss 7, 13, 29, 47, 56,
Judiciary Act 1903 (Cth) s 79
Vexatious Proceedings Act 2008 (NSW)
Cases cited: Dr Michael Van Thanh Quach v MLC Life Limited (No 1) [2019] FCA 1194
Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32
Health Care Complaints Commission v Quach [2015] NSWCATOD 2
Hearne v Street (2008) 235 CLR 125
Quach v New South Wales Health Care Complaints Commission [2017] NSWCA 267
Quach v RU (No 2) [2020] FCA 957
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
Division: General Division Registry: Australian Capital Territory National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 76 Date of hearing: 1 – 2 March 2021 Counsel for the Applicant: The applicant appeared for himself Counsel for the Respondent: Mr S R Donaldson SC with Mr N J Olson Solicitor for the Respondent: Turks Legal ORDERS
ACD 18 of 2019 BETWEEN: DR MICHAEL VAN THANH QUACH
Applicant
AND: MLC LIMITED
Respondent
ORDER MADE BY:
RARES J
DATE OF ORDER:
2 MARCH 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs.
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:
Michael Quach, the applicant, was a general practitioner. On 5 September 2005, he completed a proposal for personal protection portfolio policy underwritten by MLC Limited,…
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- Case
- [2021] FCA 271
- Decision Date
CaseChat Overview and Summary
The court held that under section 91 of the Evidence Act 1995 (Cth), evidence of decisions or findings of fact in Australian proceedings, including those before NCAT, is not admissible to prove the existence of facts in issue in another proceeding. Therefore, the NCAT findings could not be used as evidence to substantiate Mr Quach’s claim. Furthermore, the court found that MLC was not bound by the NCAT findings as it was neither a party to nor privy to those decisions. Consequently, Mr Quach’s argument that MLC was in breach of the insurance policy by not paying his claim was dismissed.
The court concluded that Mr Quach had failed to provide any meaningful information or medical evidence to substantiate his claim and had not complied with the policy terms. His argument that MLC was required to accept the NCAT findings as binding was rejected as it would unjustly prejudice MLC, which had no opportunity to challenge those findings. The court also dismissed Mr Quach’s reliance on section 47 of the Insurance Contracts Act 1984 (Cth), which deals with pre-existing sickness or disability. The application was dismissed, and Mr Quach was ordered to pay MLC’s costs.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the respondent’s costs.
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
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Sixthly, he acknowledged his argument removed any right to procedural fairness that MLC might have had to consider or challenge his claim in this proceeding, but shrugged that off as simply being the result of the legislative intention.Consideration Mr Quach’s submission is fundamentally contrary to the express words of the legislation on which it was supposed to be based; as I have said it was nonsensical. So far as he seeks to use the findings of fact as binding on MLC, even if he could overcome, which he cannot, s 91 of the Evidence Act or the principles of res judicata, issue estoppel or Anshun estoppel, his argument ignores that MLC was not a party to or even aware of the NCAT proceedings before NCAT made its decisions and, consequently, could not be bound by them. In Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at 523–524 [38]–[39] French CJ, Bell, Gageler and Keane JJ said (see too 517–518 [22]): It is a principle at the core of our legal system that a party claiming or denying the existence of a legal right or obligation should have an opportunity to present evidence and arguments to establish the facts and law on which the claim or denial is founded…The operation of an estoppel, it must be remembered, is to preclude the assertion in a subsequent proceeding of what is claimed to be the truth.It would be quite unjust for such a person to be precluded from asserting what the person claims to be the truth if the person did not have an opportunity to exercise control over the presentation of evidence and the making of arguments in the earlier proceeding and if the potential detriment to the person from creating such an estoppel was not fairly taken into account in the decision to make or defend the claim in the earlier proceeding or in the conduct of the earlier proceeding.(emphasis added) That is the very kind of injustice that Mr Quach’s incoherent argument seeks to achieve and why it must be rejected. Whatever else may be said, his argument is hopeless because MLC was not bound by any findings of fact in NCAT’s by force of s 91 of the Evidence Act and MLC was not a party or privy to those decisions. Mr Quach also sought to rely on s 47 of the Insurance Contracts Act. That provides:47 Pre‑existing sickness or disability(1)This section applies where a claim under a contract of insurance is made in respect of a loss that occurred as a result, in whole or in part, of a sickness or disability to which a person was subject or had at any time been subject.(2)Where, at the time when the contract was entered into, the insured was not aware of, and a reasonable person in the circumstances could not be expected to have been aware of, the sickness or disability, the insurer may not rely on a provision included in the contract that has the effect of limiting or excluding the insurer’s liability under the contract by reference to a sickness or disability to which the insured was subject at a time before the contract was entered into.(emphasis added)