FEDERAL COURT OF AUSTRALIA

Quach v MLC Limited (No 3) [2019] FCA 2066

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal 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    The applicant, Michael Quach, seeks leave to appeal from a decision of the primary judge in which his Honour only partly upheld Mr Quach’s challenge to 10 subpoenas issued by the respondent, MLC Limited.

2    His Honour was dealing with a matter of practice and procedure and gave pithy reasons as to why he determined the application in the way he did. There is no reason to doubt that his Honour correctly identified the principles applicable to the setting aside of a subpoena including whether documents sought by the subpoenas had apparent relevance for the purposes of the proceeding.

3    The first ground of Mr Quach’s objection to the subpoenas was that they were a fishing expedition for information related to whether he had engaged in misconduct on the basis that the Court had no jurisdiction to determine that question.

4    His Honour upheld the part of Mr Quach’s argument that parts of the subpoenas to third parties that sought correspondence with regulatory bodies relating to his conduct as a medical practitioner should be struck out, but his Honour allowed the balance of each of those subpoenas to stand. As to the balance, the primary judge saw no reason why MLC could not ask for production of relevant documents for the periods specified in the balance of the subpoenas in respect of subject matters in issue in the proceeding.

5    The central issue in the proceeding concerns Mr Quach’s claim on an insurance policy, called the MLC personal protection portfolio policy, being a form of life insurance. His Honour evidently concluded that the balance of the subpoenas sought documents relating to Mr Quach’s claim that he had been unable to work after 14 August 2014 and was therefore entitled to indemnity under the policy. The question of whether or not Mr Quach had some pre-existing or other medical condition appears to be of some relevance to the proceeding. His Honour said that MLC was entitled to seek documents in relation to what appeared to be that disputed fact.

6    Mr Quach referred to the policy document’s summary of the consequences of a breach of an insured’s duty of disclosure in the context of a proposal for life insurance (including insurance of the kind offered in the policy) that reflected the terms of ss 29(2), (3) and (4) and 47 of the Insurance Contracts Act 1984 (Cth) and argued that these, somehow, made the balance of the subpoenas irrelevant to any issue in the proceeding.

Consideration

7    An applicant for leave to appeal must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave. It must also show that substantial injustice will result from a refusal of leave to appeal: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ. The primary judge’s decision related to a matter of practice and procedure and was interlocutory. In determining whether to grant leave to appeal from a discretionary decision to refuse to set aside a subpoena, or terms of paragraphs in a subpoena, the Court will exercise particular caution for the reasons given by Gibbs CJ, Aickin, Wilson and Brennan JJ in Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177, citing what Jordan CJ had held in In re the Will of F.B. Gilbert (dec.) (1946) 46 SR (NSW) 318 at 323.

8    In the present case, I am not satisfied that his Honour’s decision is attended by sufficient doubt or that any substantial injustice will occur by refusing a grant of leave to appeal. Indeed, Mr Quach, although challenging his Honour’s reasoning as not going far enough when setting aside paragraphs of the impugned subpoenas, did not suggest that he would suffer any injustice by requiring their recipients to answer them.

9    I dismiss the application for leave to appeal with costs.

Associate:

Dated:    6 December 2019