FEDERAL COURT OF AUSTRALIA

Dr Michael Van Thanh Quach v MLC Life Limited (No 1) [2019] FCA 1194

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 10 July 2019 is upheld to the extent it relates to the following parts of the subpoenas issued on 20 June 2019 at the respondent’s request:

(a)    paragraph (d) of the subpoena addressed to Dr Andrew Pethebridge of St George Public Hospital;

(b)    paragraph (d) of the subpoena addressed to Dr Bernard St George;

(c)    paragraph (d) of the subpoena addressed to Dr Karleng Tan;

(d)    paragraph (f) of the subpoena addressed to Dr Sarah Guirgus Nguyen of Newton Medical Practice;

(e)    paragraph (f) of the subpoena addressed to Dr Dzu Nguyen of Botany Medical Centre;

(f)    paragraph (f) of the subpoena addressed to Dr Merson Mathew of Weston Creek Medical Centre;

(g)    paragraph (f) of the subpoena addressed to Ms Cindy Watts of Railway Street Medical Centre; and

(h)    paragraph (f) of the subpoena addressed to Dr Susan Morton of Kaleen Medical Practice.

2.    There is 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    The applicant, whom I will refer to as Dr Quach, moves on an interlocutory application dated 10 July 2019. He seeks to have set aside parts of 10 subpoenas issued by the respondent, whom I will refer to as MLC life. One of those subpoenas is a subpoena addressed to Dr Quach personally, which Dr Quach seeks to have set aside or narrowed. Dr Quach relies upon two affidavits in support of his interlocutory application, both dated 10 July 2019. Dr Quach advanced in his oral submissions three grounds in support of his interlocutory application.

2    The first ground was that parts of the subpoena were, in his submission, fishing for information relating to the question of whether he has engaged in professional misconduct, a matter which he says does not arise in the course of the proceedings in this Court. Dr Quach also contends that this Court has no jurisdiction to determine whether or not he has engaged in professional misconduct.

Principles

3    The principles guiding whether or not a subpoena should be set aside were helpfully summarised by Beaumont J in Trade Practices Commission v Arnotts Ltd (No 2) (1989) 103 ALR 90 at 103 21 FCR 306:

(1)    Does the material sought have an apparent relevance to the issues in the principal proceedings, that is, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of [the issuing party].

(2)    Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of [the party subpoenaed].

4    The concept of “apparent relevance” was further explained by Sackville J in Seven Network Ltd v News Limited (No 11) [2006] FCA 174 at [6]:

It is now established that lack of apparent relevance is a ground for setting aside a subpoena or notice to produce: Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 101-103, per Beaumont J. In an earlier interlocutory judgment delivered in these proceedings, I said that the test of apparent relevance is whether the documents are ‘reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case’: Seven Network Ltd v News Ltd (No 5), at [10], citing Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927, per Waddell J. Neither party disputes that this is the appropriate test.

Consideration

5    I accept Dr Quach’s submissions that paragraphs in the subpoenas issued to persons other than himself, which relate to correspondence between the recipient of the subpoena and various regulatory bodies, is not of apparent relevance to the proceedings before this Court. I cite as an example paragraph 2(f) of the subpoena which was addressed to the Botany Medical Council.

6    I order that that paragraph and equivalent paragraphs in the other subpoenas that have been issued to Dr Quach’s former employees be struck out.

7    The second matter upon which Dr Quach complains relates to the subpoena addressed to him, and, in particular, those parts of that subpoena that require him to produce income tax returns, company tax returns and other financial records relating to a company called Bennelong Medical Pty Limited. Dr Quach confirmed that Bennelong Medical Pty Limited is his private company.

8    Dr Quach says that the subpoena addressed to him fails to recognise the different legal status of an individual as opposed to a company. In my respectful view, there is no basis for setting aside the relevant paragraphs of that subpoena. Dr Quach is being asked to produce in response to the subpoena documents that are within his control or his possession. It would be surprising if he was not in a position to control the documents relating to his own personal company. If it be the case, unusually, that those documents are not within his control or possession than Dr Quach will simply provide a nil response to those parts of the schedule. Having said that, however, I would be very surprised if he was not within control, or did not have possession of those various documents.

9    The third matter raised by Dr Quach relates to the period covered by the subpoena addressed to him in paragraphs 2 through to 7, and the requirement that he produce various documents for a period spanning from 30 June 2008 to 2018. He says that the relevant paragraphs should be narrowed to an end date of 14 August 2014 when he ceased to practice.

10    I disagree, with respect. I see no reason why the respondent is not entitled to ask for production of the relevant documents for the period specified in the subpoena, having regard to its desire, as put to him by its counsel Mr Opas, to be able to test the claim made by Dr Quach in the proceeding that he was unable to work after 14 August 2014. The company is entitled to have access to the documents in relation to what appears to be a disputed fact on that matter.

11    For all those reasons I uphold the interlocutory application insofar as it relates to paragraph 2(f) of the subpoena issued to the Botany Medical Centre, and to Dr Nguyen at that centre, and to the equivalent paragraphs in the other subpoenas that have been issued to Dr Quach’s former employers.

Associate:

Dated:    2 August 2019