Quach v MLC Limited (No 6)

Link copied
Case Copied 37 min read

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:

  1. 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,…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Quach v MLC Limited (No 6) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2021] FCA 271
Decision Date

CaseChat Overview and Summary

In Quach v MLC Limited (No 6), the applicant, Mr Quach, sought to claim under a life insurance policy for total and permanent disability due to his inability to practise as a medical practitioner, following his deregistration by the Civil and Administrative Tribunal of New South Wales (NCAT). The dispute involved the interpretation and application of the insurance policy terms and the admissibility of NCAT findings in the insurance claim proceeding. The key legal issue before the court was whether the findings of fact by NCAT could be admissible to prove the existence of facts in issue in the insurance claim proceeding, and if MLC was bound by these findings.

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

Any findings by NCAT in its reasons cannot be evidence in this proceeding of the existence of a fact in issue before it because s 91 of the Evidence Act 1995 (Cth) provides: 91 Exclusion of evidence of judgments and convictions(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose. The dictionary to the Evidence Act provides that “Australian proceeding” means “a proceeding (however described) in an Australian court”, and, relevantly, “an Australian court” means:(e) a person or body authorised by an Australian law, or by consent of parties, to hear, receive and examine evidence The disciplinary proceeding before NCAT was such an Australian proceeding because NCAT was a body within the meaning in (e) of the definition of Australian court. Accordingly, s 91 provides that evidence of the decision or finding of fact by NCAT is not admissible to prove the existence of a fact that was in issue in the proceeding. On 28 September 2015, MLC wrote to Mr Quach in response to a communication from him enclosing a claim form under the policy. On 9 October 2015, Mr Quach completed and returned the claim form to MLC. The claim form stated that:·on 22 July 2009, Dr Jonathan Phillips had diagnosed him with impairment which had first shown symptoms on 7 January 2008;·Dr Phillips and Dr Andrew Petherbridge had diagnosed him having respectively impairment and narcissistic personality disorder that was severe and getting worse. The claim form also included a report by Mr Quach’s treating psychiatrist, Dr Yvonne Skinner, in which she wrote that:·she had not made a psychiatric diagnosis of Mr Quach, but that Dr Phillips, on a referral by the New South Wales Medical Board, had diagnosed an impairment in July 2009 which had placed limitations on Mr Quach’s ability to practice;·Dr Petherbridge, on a referral by the New South Wales Medical Council, had diagnosed narcissistic personality disorder. Dr Skinner also recorded answers to questions in the claim form as follows:Q21: Are the patient’s current symptoms impacting their ability to perform any of their usual work duties? A: No, in my opinion.She referred to the date of Dr Phillips’ opinion of 22 July 2009 in answer to question 22, namely:Q22: Did the patient stop working at any time?A: Yes – ceased work for periods 2011 – 2014. Last day of work 11/08/04. … Q24: When do you expect the patient to return to full-time work? A: Depends on legal proceedings.Q25: Do you expect the patient to return to work in the future? Yes. Please advise when you expect them to be medically fit to return to work? Depends on legal proceedings.Q26: If the patient hasn’t returned to work, are they currently able to return to restricted or limited to duties?A: No, due to ongoing legal proceedings.

Decision

Reasons for decision

In that situation, Mr Quach has not satisfied me that he has even an arguable case that MLC was in breach of its obligations under the policy to pay his claim. Conclusion No doubt Mr Quach’s behaviour leading to the vexatious proceedings order and in the course of this proceeding would suggest that he would have little difficulty in obtaining medical evidence that he may have some form of illness that affects his ability to practice. It may be that this explains MLC’s humane decision to pay Mr Quach even though he has refused to comply with the policy conditions. For the sake of his own future health and wellbeing, Mr Quach should pay regard to MLC’s requirement to obtain medical advice to support any claim he might wish to make in the future. I am not satisfied that MLC has done anything contrary to its obligations under s 13 of the Insurance Contracts Act. One might think that Mr Quach’s behaviour towards MLC is the antithesis of his own obligation under s 13 to act in the utmost good faith, by reason of his failure to provide any meaningful information to MLC at any relevant time or to comply with the orders of the Court relating to the provision of discovery. For these reasons, his claim that MLC is in breach of the policy is untenable and must be dismissed with costs.

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)