Federal Court of Australia

Quach v MLC Life Limited (No 5) [2020] FCA 1134

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 14 July 2020 be dismissed.

2.    The applicant pay the costs of the respondent on the interlocutory application filed on 14 July 2020 on an indemnity basis.

3.    The applicant file and serve any expert reports and outlines of further lay evidence on which he proposes to rely on or before 25 September 2020.

4.    The matter be listed for a case management hearing on 2 October 2020.

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    This is yet another application by Michael Quach, the applicant. He seeks that nine subpoenas addressed to third parties issued at the suit of his disability policy insurer, the respondent, MLC Life Limited, either should be set aside, or that documents, the subject of the subpoenas, should not be available for inspection by MLC because of his claim that he has legal professional privilege over them.

Background

2    The history of the litigation to date has been set out in earlier judgments and need not be repeated beyond what follows. Mr Quach claims that, under the policy, he had a right to indemnity because he has been unable to work on the basis, as he asserts in his further amended statement of claim, that “an allegation of ‘illness’ by way of impairment was made by the New South Wales Medical Board”, dating back to 2008.

3    On 1 August 2019, Mr Quach appeared before Griffiths J to set aside parts of 10 subpoenas that MLC had issued to third parties and himself. He based his present claim to set aside the nine subpoenas on what his Honour had said in his reasons on that occasion in Dr Michael Van Thanh Quach v MLC Life Limited (No 1) [2019] FCA 1149 at [5]-[6] namely:

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.

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.

(emphasis added)

4    On 24 April 2020, Griffiths J dismissed Mr Quach’s application to set aside in their entirety, or to amend, 12 further subpoenas issued at the suit of MLC, most of which are the subject of the present application. Griffiths J described those 12 subpoenas as “in substance amended subpoenas which were reissued to reflect the Court’s orders dated 1 August 2019”: Dr Michael Van Thanh Quach v MLC Life Limited (No 4) [2020] FCA 532 at [6]. In those reasons, his Honour set out Mr Quach’s written submissions in support of his claims in their entirety, summarised Mr Quach’s oral submissions and gave reasons for dismissing each of the arguments Mr Quach had made in seeking to set aside the subpoenas, or to have leave to issue them revoked.

5    On 29 May 2020 I made orders that, first, Mr Quach file and serve a further amended statement of claim that particularised the policy wording under which he claims his disability or condition the subject of his claim for indemnity, and the date when he made that claim, and secondly, MLC file and serve its defence. Both parties complied with those orders. I also made an order that Mr Quach identify, in an affidavit, each claim that he made for legal professional privilege in respect of each document produced in answer to the nine subpoenas now in issue, namely ones issued to:

(1)    Dr Anthony Samuels

(2)    Dr Jeff Bertucen

(3)    Dr Jonathan Phillips

(4)    Professor Roy Gary Beran

(5)    Dr Andrew Petherbridge

(6)    Dr Dzu Nguyen

(7)    Dr Susan Morton

(8)    Ms Cindy Watts

(9)    Department of Human Services

6    Each subpoena to the 7 doctors sought production of records of consultations with Mr Quach, reports and other medical records about him and correspondence with other medical practitioners in the period 1 January 1998 to date. The subpoena to Ms Watts sought production of employment records in respect of then Dr Quach’s employment at a medical practice for which Ms Watts was the practice manager. The subpoena to the Department of Human Services sought production of Medicare and Pharmaceutical Benefits Scheme claims histories in respect of then Dr Quach’s billings and prescriptions.

7    Also on 29 May 2020, I dismissed, as an abuse of process, a separate proceeding that Mr Quach had brought against an officer of the Health Care Complaints Commission relating to the way in which Penfold J, in the Supreme Court of the Australian Capital Territory, had dealt with his attempt to have the Commission committed for contempt for not answering a subpoena that he had caused to be issued to the Commission in those proceedings: Quach v RU (No 2) [2020] FCA 957. I began delivering ex tempore reasons on that occasion, which were unable to be properly transcribed due to the Auscript recording link dropping out for a substantial period. The hearing was conducted remotely from the Court’s premises due to the COVID-19 pandemic and public health restrictions. Mr Quach described the subpoena in question in the Supreme Court proceedings as a “subpoena for discovery” so that, according to his argument, it was not a “subpoena” within the meaning of the definition of subpoena in the Service and Execution of Process Act 1992 (Cth). I found Mr Quach’s argument to be misconceived because, if a subpoena were issued for the purpose of discovery, either to a party or to a third party, it would be an abuse of the process of the court.

Mr Quach’s submissions

8    Mr Quach argued that Griffiths J’s finding in Quach (No. 1) [2019] FCA 1194 at [5] was determinative of the enforceability or validity of the nine subpoenas in issue. He contended that all the documents sought must have been brought into existence pursuant to correspondence between the addressees and regulatory bodies that were seeking to prevent or limit Mr Quach’s then ability to practice as a medical practitioner. He submitted that those documents came into existence because of correspondence between the addressee of the subpoena and those regulatory bodies.

9    He also argued that the documents were subject to his legal professional privilege, first, because six of the expert practitioners had been retained by the regulatory bodies and had written reports that the regulators had served on him in regulatory proceedings against him. He contended that, somehow, he could claim legal professional privilege over the documents which each of the individual practitioners produced in answer to the subpoena served on him. Secondly, Mr Quach contended that the reports the other medical practitioner, Professor Roy Beran, had prepared when engaged to give evidence on Mr Quach’s behalf were still privileged. Prof. Beran gave evidence and his reports were tendered in the New South Wales Civil and Administrative Tribunal (NCAT) in Health Care Complaints Commission v Quach [2015] NSWCATOD 2. Mr Quach claimed that, somehow, Prof. Beran’s tendered reports and the documents on which they were based were also privileged and also only came into existence as a result of correspondence between the regulatory bodies and him. He submitted that the subpoenas to the doctors amounted, in effect, to an attempt by MLC to get discovery and were, therefore, an abuse of process.

10    Mr Quach argued that the documents produced by Ms Watts were privileged on the basis of a draft letter dated 7 September 2011that he said his solicitor had sent to the Medical Council seeking its approval (under conditions that the Council had imposed on then Dr Quach) for a supervisor for him at the clinic of which Ms Watts was practice manager. He argued that the practice’s documents came into existence because of correspondence between the Medical Council and Ms Watt’s practice and, therefore, somehow, were “not of apparent relevance to” this proceeding in accordance with Griffiths J’s ruling in Quach (No1) [2019] FCA 1194 at [5]. Likewise he argued that the documents produced by the Department had come into existence and were in the possession of regulatory bodies, including the Council and the Commission and, again somehow, “were not of apparent relevance”.

11    Mr Quach also noted that he had filed an application for leave to appeal from Griffiths J’s orders made on 24 April 2020 which has not yet been determined.

Consideration

12    In my opinion, none of Mr Quach’s arguments should be accepted.

13    Griffiths J’s reasons in Quach (No. 1) [2019] FCA 1194 at [5]-[6] have nothing whatever to do with the current subpoenas issued in January 2020 addressed to the individual practitioners to produce the documents sought. In Australian Securities & Investment Commission v Southcorp Limited (2003) 46 ACSR 438 at 442 [21] Lindgren J explained why these materials are not privileged, saying, relevantly:

(3) Documents generated unilaterally by the expert witness, such as working notes, field notes, and the witness's own drafts of his or her report, do not attract privilege because they are not in the nature of, and would not expose, communications: cf Interchase [Corp Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 1) [1999] 1 Qd R 141] at 161–2 per Thomas J.

(4) Ordinarily disclosure of the expert's report for the purpose of reliance on it in the litigation will result in an implied waiver of the privilege in respect of the brief or instructions or documents referred to in (1) and (2) above, at least if the appropriate inference to be drawn is that they were used in a way that could be said to influence the content of the report, because, in these circumstances, it would be unfair for the client to rely on the report without disclosure of the brief, instructions or documents; cf Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 481; 69 ALR 31 at 34 per Gibbs CJ, CLR 487–8; ALR 38–9 per Mason and Brennan JJ, CLR 492–3; ALR 42–3 per Deane J, CLR 497–8; ALR 46–7 per Dawson J; Goldberg v Ng (1995) 185 CLR 83 at 98 ; 132 ALR 57 at 66 per Deane, Dawson and Gaudron JJ, CLR 109; ALR 75 per Toohey J; Instant Colour Pty Ltd v Canon Australia Pty Ltd [1995] FCA 870; BC9506842 Australian Competition and Consumer Commission v Lux Pty Ltd [2003] FCA 89; BC200300344 at [46].

(5) Similarly, privilege cannot be maintained in respect of documents used by an expert to form an opinion or write a report, regardless of how the expert came by the documents; Interchase at 148–50 per Pincus JA, at 161 per Thomas J.

(emphasis added)

14    None of the addressees of those subpoenas raised any claim of legal professional privilege or other objection to production of the documents subpoenaed and each has produced them to the Court.

15    Mr Quach attended on the relevant practitioners, following which they prepared reports about him. Those reports were used in evidence in the regulatory proceeding. There is no possible basis to support a claim that Mr Quach has legal professional privilege over the doctors’ records or reports created and tendered in any of those proceedings. Privilege no longer attached to any such reports once the reports themselves were deployed in evidence. Moreover, the material underlying the expert opinions expressed and statements of fact in those reports would also appear to be relevant to the issues in this proceeding and not privileged: Southcorp 46 ACSR at 442 [21].

16    Mr Quach has now explained that the foundation of his further amended statement of claim is that he suffered from a disability from at least 2008. Accordingly, there is an apparent relevance of the medical reports and records sought that were created in relation to, first, his condition and, secondly, when that condition initially appeared, so far as his argument is that the policy responds to whatever that condition was.

17    In August 2019, Griffiths J was not dealing, at the stage of this proceeding, with any such issue. Mr Quach only pleaded that part of his claim following the orders of 29 May 2020. In any event, his Honour was dealing, in Quach (No 1) [2019] FCA 1194 at [5]-[6], only with particular paragraphs that he set aside in the earlier subpoenas. Those paragraphs had called for the production of correspondence between the medical practitioner and third parties. On that occasion, his Honour granted leave to MLC, in order 8, to issue further subpoenas that Mr Quach now seeks to challenge. But Griffiths J did not grant leave to MLC to issue subpoenas to the Australian Health Practitioner Regulation Agency, the Medical Council of New South Wales or another particular medical practitioner. That fact makes pellucid that his Honour was not making any decision about the validity or subject matter of the subpoenas now in question.

18    Mr Quach’s argument was that the doctors, the subject of the seven subpoenas addressed to them, would never have produced the reports used in evidence in the regulatory proceedings that he faced without there being some correspondence in relation to those reports. He then contended that, therefore, when Griffiths J held that particular paragraphs in the earlier subpoenas that sought the production of correspondence between the recipient and the various regulatory bodies was of no apparent relevance to the proceeding before the Court, that his Honour was, in some way, ruling that any report produced as a result of a request in correspondence to produce a report, was also of no apparent relevance.

19    That argument is misconceived. His Honour made no such ruling and was not asked to do so. The documents sought in the subpoenas the subject of Mr Quach’s current challenge have an apparent relevance and they ought to be made available for MLC’s inspection.

20    Those documents cannot possibly be the subject of a claim for legal professional privilege on the basis that Mr Quach raised, namely that he received advice from his own solicitors about the reports from the doctors retained by the regulatory authorities in proceedings against him following the service of those reports on Mr Quach or his lawyers.

21    Mr Quach also contended that Prof. Beran’s reports were privileged because Mr Quach’s solicitor had engaged him as an expert to assist him in his defence of regulatory proceedings.

22    Leeming JA, with whom McColl and Meagher JJA agreed, in Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10 at [55] noted that Prof. Beran’s reports had been admitted over the objection of the Commission, and NCAT made findings based upon Prof. Beran’s evidence. Any legal professional privilege attaching to Prof. Beran’s reports and the substratum on which they were based was lost by no later than when Mr Quach’s lawyers tendered Prof. Beran’s reports. The Professor was called to give evidence in reliance on them. No claim for legal professional privilege over Prof. Beran’s tendered reports or the material on which they were based could be maintained: Southcorp 46 ACSR at 442 [21]. The argument is untenable.

23    The subpoena to Ms Watts was addressed to her in her capacity as practice manager at a practice at which Mr Quach had worked as a doctor. He argued that he could claim legal professional privilege all over all of the documents Ms Watts produced because regulatory bodies had or might have written to her or she had or might have had correspondence with them relating to his application to the Medical Council for approval of a supervisor for him to work at that practice. Again, that claim has no conceivable legal foundation.

24    Mr Quach, through his solicitors, appeared to be asking, in the draft letter, that he be able to work under supervision at the practice. Documents produced by Ms Watts in answer to the subpoena relating to his position, statements, job descriptions, applications for employment, contracts of employment, performance reviews, evidence of discussions about his work performance, and time and pay records as to when he worked at the practice are apparently relevant to his claims as articulated in the further amended statement of claim filed pursuant to the order of 29 May 2020. That is particularly so, given that in September 2011 he was seeking to have approval from the Medical Council to work at the practice. Those documents were business records of the practice and cannot be subject to any legal professional privilege that Mr Quach could assert. Therefore, the subpoena to Ms Watts must stand. MLC is entitled to inspect the documents produced by Ms Watts.

25    Likewise, the subpoena directed to the Department seeks then Dr Quach’s Medicare and Pharmaceutical Benefits Scheme claims history from 1998 to date. Those documents have apparent relevance to the issues the subject of this proceeding. Again, no conceivable claim for legal professional privilege could exist over those documents. These documents are business records of Medicare and the Pharmaceutical Benefits Scheme produced in the ordinary course of business, and, likewise, they have apparent relevance to Mr Quach’s claims as to his capacity to work.

Conclusion

26    For these reasons Mr Quach’s interlocutory application seeking to set aside the subpoenas must be dismissed as hopeless. I accept MLC’s arguments that Mr Quach should pay its costs on an indemnity basis.

Associate:

Dated:    6 August 2020