Dr Michael Van Thanh Quach v MLC Life Limited (No 2)

• Jurisdiction: Australia Federal only
• Judge: GRIFFITHS J
• Judgment Date: 20 August 2019
• Neutral Citation: [2019] FCA 1322
• Date: 20 August 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Dr Michael Van Thanh Quach v MLC Life Limited (No 2) [2019] FCA 1322

File number:	ACD 18 of 2019
Judge:	GRIFFITHS J
Date of judgment:	20 August 2019
Catchwords:	PRACTICE AND PROCEDURE - claim for legal professional privilege over documents produced under subpoena – evidentiary material required to establish such a claim – circumstances in which the Court can inspect the documents – general principles concerning legal professional privilege – claims for privilege in respect of two documents upheld
Legislation:	Insurance Contracts Act 1984 (Cth) Evidence Act 1995 (Cth)
Cases cited:	Barnes v Commissioner of Taxation (Cth) [2007] FCAFC 88; 242 ALR 601 Commissioner of Australian Federal Police v Propend FinancePty Ltd [1997] HCA 3; 188 CLR 501 Esso AustraliaResources Limited v Commissioner of Taxation of the Commonwealth of Australia [1999] HCA 67; 201 CLR 49 Hancock v Rinehart (Privilege) [2016] NSWSC 12 Martin v Norton Rose Fulbright Australia [2019] FCA 1101 Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10 The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; 213 CLR 543 Trade Practices Commission v Sterling (1979) 36 FLR 244 Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission [2007] FCAFC 147; 161 FCR 122
Date of hearing:	20 August 2019
Registry:	New South WalesGrNSD
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Category:	Catchwords
Number of paragraphs:	16
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr A Opas
Solicitor for the Respondent:	TurksLegal

ORDERS

		ACD 18 of 2019
BETWEEN:	DR MICHAEL VAN THANH QUACH Applicant
AND:	MLC LIFE LIMITED Respondent

JUDGE:	GRIFFITHS J
DATE OF ORDER:	20 August 2019

THE COURT ORDERS THAT:

1. The respondent’s claims for legal professional privilege in respect of the Legal Referral Form and Legal Opinion dated 11 July 2019, together with a copy of the Legal Referral Form, are upheld.

2. There be no order as to 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)

GRIFFITHS J:

1. These proceedings relate to the respondent’s claim for legal professional privilege in respect of two documents which have been produced by the respondent in answer to a subpoena dated 2 May 2019.

Summary of background facts

2. The substantive proceedings were commenced by the filing of an originating application dated 19 March 2019. It was accompanied by a statement of claim dated 19 March 2019. An amended statement of claim was filed on 14 May 2019. Dr Quach is dissatisfied with MLC Life’s handling of his claim made under an income protection policy he had with the company. He complains that he was verbally abused by an employee of MLC Life. He also complains that MLC Life has breached its duty of “the utmost good faith” under the Insurance Contracts Act 1984 (Cth) (Insurance Contracts Act). He further complains that MLC Life demanded access to information relating to a matter in the New South Wales Court of Appeal without first obtaining the Court’s leave. Dr Quach seeks compensatory damages.

3. MLC Life has filed a defence, in which it denies all the claims made against it. MLC Life accepts that it entered into a life insurance policy (168-88009N) with effect from 25 November 2005 with Dr Quach. It also admits that on 18 November 2015 Dr Quach lodged a claim for the payment of benefits under the policy in relation to “Impairment” and “Narcissistic Personality Disorder”. MLC Life asserts that Dr Quach has not cooperated with all of its requests for information in relation to his claim.

4. It is also relevant to note, by way of background, litigation between the Health Care Complaints Commission and Dr Quach in both the Civil and Administrative Tribunal of New South Wales (NCAT)and, subsequently, in the Court of Appeal of the Supreme Court of New South Wales. This litigation provides some context for Dr Quach’s claim against MLC Life under his income protection plan policy. On 5 February 2015, NCAT found that Dr Quach had engaged in conduct which was both unsatisfactory professional conduct and professional misconduct. The conduct included charging excessive amounts, misdiagnosis and inappropriate treatment regimes, as well as a finding that Dr Quach had a mental impairment, disability, condition or disorder (a narcissistic personality disorder) which detrimentally affected his capacity to practice medicine. Dr Quach’s registration as a medical practitioner was cancelled and he was prevented from applying to have that cancellation of his registration reviewed for a period of seven years. The history of Dr Quach’s proceedings in the Court of Appeal is outlined in Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10. The proceedings in the Court of Appeal were by way of judicial review for jurisdictional error. Dr Quach was unsuccessful in the Court of Appeal and was ordered to pay costs.

MLC Life’s claims for legal professional privilege

5. In support of its claims for privilege, MLC Life relied upon an affidavit dated 7 August 2019 by its instructing solicitor, Mr Alphonse Edwards. The affidavit did not describe the two documents or state in any detail why they attracted legal professional privilege. MLC Life also tendered, however, over Dr Quach’s objection, a copy of the Schedule of Documents which described the two relevant documents and several other documents in respect of which MLC Life no longer pressed its claim for privilege. In brief, the claims for privilege are now pressed on the following two documents only.

1. As to a document entitled “Legal Referral Form”, MLC Life claims that it is a confidential document prepared for the dominant purpose of having a lawyer provide legal advice to it and in anticipation of legal proceedings.

2. As to the other document entitled “Legal Opinion”, together with a copy of the Legal Referral Form, similar dual claims for privilege are made on the basis that this document was created by Suzanne Oliver (MLC’s Senior Legal Counsel) on or around 11 July 2019. The document was prepared in response to the Legal Referral Form.

6. MLC Life has the onus of establishing the basis for its privilege claims. This has implications for the quality of the evidence which must be adduced, as is reflected in Brennan CJ’s observations in Commissioner of Australian Federal Police v Propend FinancePty Ltd [1997] HCA 3; 188 CLR 501 at 513-4:

When a claim of privilege attaching to a document seized under a warrant comes to be determined judicially, the court must ascertain for itself whether the document was brought into existence solely for a privileged purpose … In determining the claim of privilege, the court is not reviewing judicially an executive action but is determining a distinct controversy between the person who seeks to inspect the seized document and the person who seeks to maintain its immunity from inspection on the ground of legal professional privilege. To determine that controversy, the court must act upon admissible evidence, not upon hearsay.

7. MLC Life contends that the Legal Referral Form and Legal Opinion are privileged on the basis that they were created for the dominant purpose of it obtaining legal advice in relation to...