Federal Court of Australia

Quach v MLC Limited (No 6) [2021] FCA 271

ORDERS

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, the respondent. The policy incepted on 25 November 2005 and, relevantly, covered Dr Quach for income protection in the event of total and permanent or partial disability and critical illness as defined in the policy wording. Mr Quach claims that MLC has failed to indemnify him under the policy and has breached its duty of utmost good faith under s 13 of the Insurance Contracts Act 1984 (Cth). He claims compensatory damages and other relief.

The policy

2    Relevantly, the policy provided that the life insured was totally disabled if he or she was continuously unable to do at least one of the important duties of his or her occupation and was not working for earnings. “Earnings” was defined as income from self-employment or the life insured’s business or practice that he or she generated by personal efforts or, if an employee, his or her total remuneration, payment, or profit.

3    Importantly, the definition of totally disabled included the condition that “the inability must be caused by injury or sickness.”

4    To fall within the definition of being partially disabled, the life insured had to have returned to work in his or her own or another occupation and that “as a result of their inability, their monthly earnings in that occupation are lower than their earnings before disability.”

5    The policy had the following conditions relevant to the claim that Mr Quach makes:

•    Benefits will only be paid while the life insured is being regularly treated by an appropriately qualified doctor

•    This type of insurance does not cover You for any disability… of the Life Insured arising from or connected with any… sickness that first appears before this policy commenced…

•    The following special requirements apply:

You (or someone representing You) must tell us the Life Insured is Totally Disabled within 30 days of the beginning of the Total Disability. We will send You, or Your representative, a claim form or arrange a representative to contact You to complete the claim form. You must return the claim form to us (completed where required by the Life lnsured and their Doctor) within 90 days of the Total Disability beginning. lf You don't get a claim form, You must still provide details of the Total Disability to us within 90 days, including the nature, cause and extent of the Total Disability. We may ask for more information to help us assess Your claim. Your Benefit will be reviewed regularly. We may require further proof of disability if it continues.”

(emphasis added)

Background

6    On 5 February 2015, the Civil and Administrative Tribunal of New South Wales (NCAT) published extensive reasons finding that, within the meaning of ss 5 and 149(1)(a) of the Health Practitioner Regulation National Law set out in the schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) (as adopted and modified in New South Wales by s 4 and the definitions substituted and inserted in ss 139C–139E by the schedule to the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW)), Mr Quach had engaged in unsatisfactory professional conduct and professional misconduct in the practice of his profession, and was likely to be detrimentally affected in the practice of medicine by reason of his narcissistic personality disorder (Health Care Complaints Commission v Quach [2015] NSWCATOD 2 at [419]).

7    NCAT adjourned the matter until 10 April 2015 to hear submissions on what orders it should make. On 21 April 2015, after a hearing on 10 April 2015, NCAT ordered that Mr Quach’s registration as a medical practitioner be cancelled and prohibited him from applying to review the cancellation for seven years (Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32). NCAT based those orders on Mr Quach’s impairment, being the narcissistic personality disorder, and numerous failings in his medical knowledge, diagnosis, treatment and patient inter-relationships. NCAT held that, because of those matters, he was incapable of practising safe medicine. Under the National Law, “impairment” is defined in s 5 as:

in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect –

(a)     for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession.

8    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.

9    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

10    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.

11    On 28 September 2015, MLC wrote to Mr Quach in response to a communication from him enclosing a claim form under the policy.

12    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.

13    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.

14    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.

15    I admitted Dr Skinner’s recounting of Dr Phillips’ and Dr Petherbridge’s diagnoses but limited their use under s 136 of the Evidence Act to evidence of a communication so that they were not evidence of any medical condition of Mr Quach of the kind described in Dr Skinner’s report.

16    On 26 November 2015, Mark Forrest, a claims officer with MLC, telephoned Mr Quach to discuss his claim. A recording of the telephone call is in evidence. I have listened to all of its about 30 minutes. Mr Quach alleged that, in the call, MLC had breached its duty of utmost good faith under s 13 of the Insurance Contracts Act 1984 (Cth) by inquiring about the findings against him in the NCAT decisions. He said this was because Mr Forrest suggested that Mr Quach may not have complied with his duty of disclosure in 2005 when he completed his proposal for the policy. Mr Quach asserted that, at a late point in the conversation, Mr Forrest had become aggressive towards him. Having listened to the recording, I am satisfied that Mr Forrest did not become aggressive at any stage. No doubt, Mr Quach was feeling defensive after Mr Forrest had raised MLC’s wish to investigate possible non-disclosure. Toward the end of the call, Mr Forrest said he would write to Mr Quach to specify what MLC was seeking, including its inquiries in respect of the possible non-disclosure. Mr Forrest told him that MLC could not process his claim until it had Mr Quach’s response to what it required. Mr Quach told Mr Forrest that he had no choice. Mr Forrest replied that Mr Quach did have a choice between not replying, and thus not pursuing his claim, or authorising MLC to ask other doctors and bodies about his medical history. During the conversation, the following exchange occurred:

Mr Forrest:     I need to find that information there because for our point of view if you had this condition prior to your claim coming up … because you haven’t told us, you haven’t disclosed any of this information to us when you completed your policy application. So we need to know exactly what that … the nature of those … those restrictions are, what the medical condition was at that time. So that’s the reason why, because we need to …

Mr Quach:     I think … I think … I think I answered that. I think Dr Skinner answered that, there was no medical condition. There was no medical condition back then. There’s no medical condition now that they … that Dr Skinner can diagnose. It is unfortunate that they’ve used an illness against me. That … that’s the whole thing. So there was no medical condition back then. There’s no cond- … there’s no condition now, but they …

Mr Forrest:     Okay.

Mr Quach:     … used a medical condition against me. Do you understand what I’m saying?

Mr Forrest:     So the policy needs to be looked at and this is what we’re going to do I’ll put that in writing and stipulate who we’re getting stuff from, what we need from you and if you choose not to pursue that or choose not to advise us or do anything until April, all that will do is delay any claims assessment from our point of view.

Mr Quach:     Well I have no choice. I have no choice. You’re [talking together].

Mr Forrest:     Well you do [talking together] have a choice Michael, you can choose not to do it and not pursue the claim or you can choose sign it and let us do it and then we will just go ahead and do what we need to do. So, …

Mr Quach:     Well you’re ju- … oh … yeah, look … don’t get agro on me I’m trying to …

Mr Forrest:     I’m not … I’m not getting agro Michael.

Mr Quach:     … I’m trying to … I’m trying to tell you that whatever it is that you’re trying to use .. the information is now before the courts and I don’t think that you or I …

Mr Forrest:     Okay.

Mr Quach:     … can make a determination before the court can. That’s all I’m saying. So all I’m asking you to do is wait until the court proceedings are over and then I will call you and I will continue with the claim. I … that is really simple for both of us, because you’re asking … you’re asking me to disclose that information whether directly or indirectly. Okay. I can’t do that. The court have … you know, the courts have ways.

Mr Forrest:     Okay, alright … look I won’t question you any more about this, because I just seem to be upsetting you and we both of us don’t seem to be getting anywhere with this. I will send you some correspondence with that authority, telling what we’re going to do and if you read that questions they will have all my contact details on there and I’ll be more than happy to run through it with you Michael, okay.

(emphasis added)

17    Mr Quach has persisted in that untenable view throughout his engagement, or lack of it, with MLC and during this proceeding. That includes in failing to comply at all with orders that I made on 16 December 2020, that on or before 12 January 2021, he give discovery and simultaneous inspection of the medical reports to which he referred in the claim form, together with the medical reports referred to in NCAT’s reasons. He has chosen not to provide MLC or the Court with medical evidence of any kind, except Dr Skinner’s report in the claim form, that would be relevant to an evaluation of whether he was or is suffering from an illness causing his incapacity to practice medicine, which the policy covers.

18    Today, Mr Quach said that he had not referred to any medical reports in his claim form and did not, therefore, have to comply with that part of the order of 16 December 2020. He also asserted that he had legal advice that he did not have to produce anything to which the implied undertaking not to use a document produced under compulsion of a court order otherwise than for any purpose for which it was provided to him unless it was received into evidence: see Hearne v Street (2008) 235 CLR 125 at 131 [3] per Gleeson CJ, 154–155 [96] per Hayne, Heydon and Crennan JJ.

19    This, in part, explains the lack of any medical evidence, in terms of reports from practitioners establishing what, if any, illness Mr Quach may have had, the subject of his claim for total or partial disablement under the policy, in the context in which his own treating doctor said in her report in the claim form that he was not ill. The extensive use of the medical reports in evidence before NCAT, even assuming that it was a court in which the implied undertaking operated, made Mr Quach’s assertion that he could not produce those reports untenable.

20    On 30 November 2015, MLC wrote to Mr Quach saying that it understood that his claim related to the narcissistic personality disorder referred to in the NCAT decisions and that his return to work depended on the outcome of his legal proceeding (the November 2015 letter). The letter referred to those decisions and NCAT’s orders and said that, in light of those, it was unclear if Mr Quach was entitled to benefits under the policy. The letter attached a copy of his proposal and noted that it appeared to be inconsistent with information that by then was known. That information included that his application for registration as a medical practitioner had been deferred in 1998 due to concerns regarding his health. The letter asked for copies of the decisions of the Medical Board and Medical Council about his medical registration, including decisions made in 1998, 1999 and 2004, as well as any associated medical reports. In the alternative, the letter asked Mr Quach to sign and return to MLC a Government Information (Public) Access Act 2009 (Cth) application form so that MLC could obtain that material itself. MLC disclosed that it had also written directly to five doctors seeking information, including to Dr Phillips and Dr Skinner.

21    Mr Quach declined to respond to the November 2015 letter and has never provided such reports or permission.

22    On 15 February 2016, MLC wrote to Mr Quach. It said that it had not received any reply to the November 2015 letter and had closed his file, because it assumed he was not proceeding with his claim.

23    The next communication occurred on 30 April 2018, when Mr Quach wrote to the complaints department of MLC about the November 2015 letter. He said:

I would like to raise a complaint about the assessment of my income Protection and Disablement Claim. With respect, the letter from Mark Forrest dated 30 November 2015 is a "fishing" expedition and is illegal. Due to the actions of one psychiatrist, Dr Andrew Petherbridge, I am unable to earn an income as a doctor. I am making an income protection and disablement claim for the alleged disability, since 2008. With respect, the delay in assessing and withholding income protection payment is unacceptable.

24    On 28 May 2018, MLC responded. After outlining the absence of information in his claim, the letter identified the policy definitions for total disability, its conditions for payment and the amount of benefit to which an insured was entitled for each type of insurance in the schedule. It told Mr Quach that a claim would only be paid when MLC had proof that the events entitling the insured to payment of a benefit had occurred and that MLC could ask for further information to satisfy itself that the insured was entitled to benefit. The letter said that, by then, MLC had not received sufficient information to make a decision on his claim, noting that requests in its communications in November 2015 had gone unanswered, as a result of which MLC had written to him on 15 February 2015 advising that it had closed the claim. MLC wrote that, moving forward, it was willing to reopen the file and continue assessing his claim. It noted that all but one of the doctors that it had written to in 2015 had responded. It attached a new authority for release of further information for Mr Quach to complete and return. It also referred again to the 1998, 1999 and 2004 decisions affecting Mr Quach and sought information about those.

25    Mr Quach responded on 4 June 2018. He wrote that Mr Forrest had told him the claim had been assessed “due to the decision of” NCAT, but that there were ongoing matters involving the Court of Appeal of the Supreme Court of New South Wales. He asserted that there was some court order “by way of implied undertaking by all parties not to disclose court material.” He asserted that MLC was not entitled to have access to the court documents it was seeking, and if need be he would seek court orders to prohibit MLC from embarking on a fishing expedition.

26    On 12 June 2018, MLC emailed Mr Quach saying that his concerns had been referred to an officer to consider. It told him that MLC was willing to assess his claim but required further information to assist in that assessment and that, if he was unable to provide the documents as requested because of ongoing court matters and they could not be disclosed, it may have to consider other means to access the information.

27    On 11 July 2018, Suzanne Oliver the senior in-house legal counsel of MLC wrote an internal opinion in which she stated that:

If Dr Quach did in fact suffer from narcissistic personality disorder and that is a sickness and that it was that sickness that caused the behaviour that constituted the professional misconduct, and that caused him to be unable to perform the duties of occupation, it is arguable that he may have been totally disabled.

(emphasis added)

28    Mr Quach interpreted that qualified opinion as some form of admission as opposed to it articulating a possible argument that might arise if Mr Quach could establish the premises, including that he actually suffered from a narcissistic personality disorder.

The August 2018 letter

29    On 10 August 2018, MLC wrote again to Mr Quach telling him that it had found some inconsistencies between the information disclosed in his proposal as compared to what MLC now understood it should have been told (the August 2018 letter). It set the particular questions and answers in the proposal out, including his negative answer to the following question:

Q45:    Do you have or have you had any of the following?

(n)    Any other operation, disability, illness or injury, medical investigation or test (eg. genetic test, mammogram, ultrasound, ECG) not already mentioned?

(emphasis added)

30    The August 2018 letter explained that the NCAT decision had set out a history prior to his proposal. That history showed that the Medical Board in 1998 had sent Mr Quach to a psychiatrist, Dr Anthony Samuels, for assessment, and that he had opined that Mr Quach was suffering from paranoid psychosis so that his application for medical registration should be deferred. The letter explained that, after further inquiry, Mr Quach had been allowed to be registered as an intern in September 1999 with conditions on his professional registration, including that he had to enter into an impairment program in which he remained until November 2004. It then referred to information from the doctors who had responded to MLC’s 2015 request for information, and suggested that that material showed he had had a history of mental health issues, primarily paranoid psychosis, which he had not disclosed in his proposal.

31    The August 2018 letter told him that this history may have been relevant to MLC’s decision whether to accept his insurance application and on what terms. It set out the next steps which he could undertake if he wished MLC to proceed with considering his claim, and asked for an explanation as to why he answered particular questions, including Q45(n), in the proposal form, “No,” instead of disclosing his previous medical history. Next, the August 2018 letter set out his claim and the terms and conditions in the policy in respect of total and partial disability, and when benefits would be payable. It informed him that the information MLC had to date was not sufficient for it to be satisfied about those matters from May 2009 until August 2018.

32    It summarised information in his claim form. MLC noted Mr Quach did not appear to have been diagnosed with mental illness and said that Dr Skinner did not consider that he had a psychiatric diagnosis. It noted that Dr Phillips had described what he had as an “impairment”, but that he did not appear to have made a psychiatric diagnosis either and that in MLC’s view, Dr Petherbridge’s diagnosis of narcissistic personality disorder did not appear to be an illness.

33    The August 2018 letter continued to seek more information from Dr Quach. It observed that:

The evidence shows that the reason you have not worked as a doctor since 5 February 2015 is due to the cancellation of your medical registration following the findings of unsatisfactory professional conduct and professional misconduct. You have not ceased working because of injury of illness.

There is also no evidence of you having regular treatment from an appropriately qualified doctor since October 2014.

Based on the evidence we have, you do not appear to satisfy the criteria for payment of Total Disability or Partial Disability benefits because you do not appear to have an illness, you do not appear to have ceased work due to an illness, and the reason for you not being able to work id due to the cancellation of your medical registration.

(emphasis added)

34    The August 2018 letter then said that, if he would like MLC to consider his claim further, it required copies of all medical reports that named doctors had produced, any other medical reports that he had received that provided evidence of him being diagnosed as suffering an illness, his tax returns for the financial years between 2009 and 2017 showing his earnings, in addition to the dates of employment and names of employers, decisions of the Medical Board from 2008 onwards, completion of an authority to the Medical Board and to the Health Care Complaints Commission, and a new authority to obtain the records of any doctors that are outstanding.

35    The letter sought to have a response by 20 September 2018, failing which MLC would assume he did not wish to proceed with the claim.

36    MLC does not submit that, for the purposes of determining this application, a narcissistic personality disorder might not be capable, depending on the evidence, of being an illness within the meaning of the policy. However, as should by now be clear, its position has been, and still is, that Mr Quach has not provided it, or the Court with any medical evidence upon which any such consideration of that question can be based.

37    On 26 August 2018, Mr Quach sent an email in response to the August 2018 letter that said:

ln response to you request for information, I make the following points:

1. I have not had a mental illness.

2. Dr Samuels did not make a diagnosis of paranoid psychosis.

3. Dr Karleng Tan was my family doctor (parents and l) since primary school.

4. The other information you requested are before the Courts. I cannot provide you with those information because of an implied undertaking.

Please process my claim as soon as possible

Yours sincerely,

(emphasis added)

38    MLC responded on 21 September 2018, saying that Dr Quach had not provided the full information and authority forms that MLC had requested in its letter of 10 August 2018 and that, based on the evidence it had, he did not satisfy the criteria for payment of any benefit under the policy. That was because he did not appear to have a medical condition caused by a disability, did not appear to have ceased work due to an illness, and the reason he was not able to work was the cancellation of his medical registration. MLC again reminded him that if he wished to pursue his claim further, he needed to provide it with that information.

This proceeding

39    On 19 March 2019, Mr Quach filed an originating application and a statement of claim, in which he claimed that, pursuant to s 13 of Insurance Contracts Act, MLC had a duty of utmost good faith to pay him compensatory damages by reason of its refusal to pay his claim under the policy and interfering with the administration of justice by withholding the financial benefits. The statement of claim asserted that an allegation of illness by way of impairment was made by the Medical Board in 2008, which limited his ability to work and the illness resulted in his inability to work since 2015.

40    Mr Quach has made a large number of applications in the proceeding, including numerous ones that I recuse myself, which have had no substance. Those include one that he made yesterday in which he sought to compare or rely on some adaptation of the fictitious language of Newspeak, that George Orwell created in his novel 1984, in a way I could not comprehend. Mr Quach asserted that Newspeak was connected to the progress of this proceeding and my conduct of it. He also continued to discuss that concept in what he described as his “objections to MLC’s written submissions” dated 1 March 2021. For example, Mr Quach said that he objected to MLC’s submission that his claim was “unusual”, saying “MLC has negatived my claim in accordance with the principle of Newspeak, a fictitious language”.

41    He responded to MLC’s submission that relied on Dr Skinner’s answer in her report in the claim form that he had not suffered from any symptoms that impacted his ability to perform his usual work duties, saying that her answer “was made after I was prevented from working by NCAT. This is not material evidence.”

42    He continued to assert untenably that MLC had sought production through the November 2015 and other letters of “documents in breach of an implied undertaking pursuant to the High Court ruling in Hearne v Street [2008] HCA 36 at [96]”. He asserted that, somehow, Griffiths J had ruled that all that material was irrelevant when his Honour said at an early point in this proceeding (Dr Michael Van Thanh Quach v MLC Life Limited (No 1) [2019] FCA 1194 at [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 [Centre].

(emphasis added)

43    Mr Quach made an affidavit on 4 January 2021 seeking to explain his deliberate failure to give discovery. He asserted that in my decision of another proceeding, Quach v RU (No 2) [2020] FCA 957, I said during the course of argument (at [4] and [25]) that discovery was not enforceable by court order. That was incorrect. I held:

[4]    On 15 November 2019 I dealt with, and ultimately refused, Mr Quach’s application for leave to appeal from the order made by Griffiths J on 24 September 2019 that RU be referred to by the same pseudonym and for the same reasons as Penfold ACJ gave in Quach v RU (No 3) [2017] ACTSC 258 at [13]; see Quach v RU [2019] FCA 2041. During the course of argument on that occasion I observed of Mr Quach’s characterisation of a “subpoena for discovery” in the originating application that “there is no subpoena for discovery: you don’t get a subpoena for discovery”. Mr Quach applied for me to recuse myself today on the basis that this observation gave rise to an apprehension of bias. I refused to recuse myself since what I said reflected a reference to no more than a well settled principle of law: Commissioner for Railways v Small (1938) 38 SR(NSW) 564 at 573 – 574 per Jordan CJ with whom Davidson and Owen JJ agreed; see too Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 352 per Mason J.

…

[25]    If what Mr Quach was seeking to do was to obtain discovery by using the subpoena, it was plainly an abuse of the process of the Supreme Court and was not capable of being served under the SEP Act in any event: Small 38 SR (NSW) at 573-574.

44    Mr Quach then asserted that the order for discovery made on 16 December 2020 meant that I had:

taken opposing positions on the point of law of discovery to make adverse orders against me on 15 November 2019 and 16 December 2020…

It is true that an objective person would think that a judge taking opposite positions on the one point of law of discovery to make adverse orders against a party, myself, would not be capable of bringing an impartial mind to the substantive matter.

45    It is clear that Mr Quach, who is an intelligent person, was contriving deliberately to avoid giving discovery under an absurd pretext.

46    He foreshadowed in final address today unspecified claims that he has not yet particularised for “enormous” financial loss, increases in his mortgage, the need to make borrowings from relatives and the “emotional trauma” that he said he has suffered. He said that he had not yet provided any evidence or other detail of those claims because he had understood that final hearing was only to determine MLC’s liability.

MLC seeks to resolve the matter

47    On 11 February 2021, MLC’s solicitors wrote an open letter to Mr Quach in which it noted that many of its important evidentiary requirements, that were conditions necessary to establish a claim, had not been met. The letter said that, nevertheless, MLC had determined that it would waive those important requirements, accept his claim for total disability from 9 August 2014 to 28 February 2021 and refund premiums that Mr Quach had been paying in the meantime. That involved MLC agreeing to pay Mr Quach a total of $1,014,625.65 which it intends to pay without deduction of any tax, once Mr Quach gives it details of a bank account to which it can transfer the money.

48    The letter said that because his policy will continue, some way into the future, until he is aged 65, it wanted to remind him of pertinent information about which he needed to satisfy it in respect of any further payments. Those are that, first, if he was not working in any capacity, he would fall within the definition of total disability, provided that his inability was caused by injury or sickness, and of the corresponding requirement in the case of partial disability. Secondly, the policy required him to be treated regularly by an appropriately qualified doctor in order to be eligible to receive benefits. The letter stated:

Accordingly, to be entitled to further benefits under your policy you must, amongst other things, attend a doctor regularly for treatment and have a Treating Doctor's Report completed so that MLCL can assess whether you continue to be Totally Disabled or Partially Disabled, and confirm that you are undergoing treatment as required by the policy. Please note that these ongoing requirements are at your own cost.

Given these provisions, should you wish to pursue an ongoing claim, MLCL may also contact your treating doctor or specialist by phone and request a medical report directly from them. MLCL may also ask you to attend an Independent Medical Examination by one of their chosen specialists. MLCL will pay for these if required.

We may also require financial information about your earnings.

49    MLC offered to pay Mr Quach’s ordinary costs of the proceeding on the basis that he was a litigant in person, less any offsets for various costs orders already made against him. The letter also said that, having admitted his claim and agreed to pay costs, MLC was also of the view that the controversy between the parties had now resolved and asked Mr Quach to contact its solicitors with a view to agreeing consent orders.

50    As is evident from his unfortunate, self-defeating behaviour in the way he has pursued his claim under the policy and his conduct of this litigation and others, Mr Quach is not a man to come to any sensible agreement. On 20 October 2017, F. Gleeson and Simpson JJA and Sackville AJA made orders under the Vexatious Proceedings Act 2008 (NSW) against Mr Quach: Quach v New South Wales Health Care Complaints Commission [2017] NSWCA 267.

Mr Quach’s submissions

51    Mr Quach’s outline of submissions and his oral argument propounded a tortured construction of various pieces of legislation that, in substance, results in the ultimate submission that, in 2015, MLC was bound to accept NCAT’s finding that he suffered from a narcissistic personality disorder as conclusive of his entitlement to indemnity under the policy. I endeavoured to flesh out with Mr Quach how he asserted this, and as best as I can understand his argument, it was along the following lines. First, he contended that s 7 of the Insurance Contracts Act provided:

7     Effect of Act on other laws

It is the intention of the Parliament that this Act is not, except in so far as this Act, either expressly or by necessary intendment, otherwise provides, to affect the operation of any other law of the Commonwealth, the operation of law of a State or Territory or the operation of any principle or rule of the common law (including the law merchant) or of equity.

(emphasis added)

52    Secondly, he noted that s 29(2) and (3) of the Insurance Contracts Act applies to the policy because it was a policy of life insurance, so that the insurer had no right, once three more years had elapsed from entry into the contract in 2005, to avoid the policy for a fraudulent failure to disclose or for a misrepresentation not made fraudulently.

53    Of course, s 56 provided that, where a claim under a contract of insurance is made fraudulently, the insurer may not avoid the contract but can refuse to pay the claim. But the court has a discretion to determine that the fraud affected only a minimal or insignificant part of the claim and to adjust any order for payment, having regard to the need to deter fraudulent conduct in relation to insurance and any other relevant matter. Moreover, s 29(4) entitles an insurer who has not avoided a contract under s 29(2) or (3), to vary the contract by substituting for the sum insured, including any bonuses, a sum not less than that arrived at by a formula that takes account of what the insurer would have been likely to have done, had it been aware of the matters not disclosed.

54    Thirdly, drawing on the preservation of other laws for which s 7 provided, Mr Quach asserted that s 7 required MLC and this Court to accept, and prevented MLC from challenging on any basis, including s 91 of the Evidence Act, the conclusiveness of the findings of fact in NCAT’s decisions, including its findings about the impact of his narcissistic personality disorder. He asserted that, somehow, s 7 of the Insurance Contracts Act precluded s 91 of the Evidence Act from applying to excuse MLC from recognising the binding force of NCAT’s findings of fact about the narcissistic personality disorder in its internal consideration of his claim (a proposition which may be both irrelevant and unexceptional) but also to this Court’s consideration of his claim. The latter is untenable, having regard to the fact that, by force of s 4(1), the Evidence Act, including s 91, applies to all proceedings in a federal court.

55    Fourthly, Mr Quach said that his argument, however, got around s 4(1) and the exclusionary provisions of s 91 of the Evidence Act because s 8(1) provided that:

This Act does not affect the operation of the provisions of any other Act, other than sections 68, 79, 80 and 80A of the Judiciary Act 1903 (Cth).

56    Again, somehow despite s 8(1), he contended that s 79 of the Judiciary Act bound MLC and therefore (in the terms of his argument, as opposed to any legal intelligibility that I could discern in the submission) this Court to apply the laws of New South Wales including those relating to procedure and evidence. He asserted that this must result in the findings of fact in NCAT’s decisions being binding on all courts exercising federal jurisdiction in New South Wales to the extent that they are applicable. It is not necessary in dealing with this nonsensical contention to discuss any consequence of the facts that Mr Quach filed this proceeding in the Australian Capital Territory registry and I am hearing it in Canberra.

57    Fifthly, Mr Quach contended that in some way, by force of his arcane postulated interaction of the Evidence Act, the Judiciary Act, the Insurance Contracts Act, and the National Health Regulation Acts, MLC had to assess his claim in 2015, and this Court had to consider his claim by treating as binding NCAT’s finding that Mr Quach had a narcissistic personality disorder. To cap all this nonsense, Mr Quach said that the fact MLC was not a party to, and had no rights in respect of the making of NCAT’s decisions, was irrelevant because s 7 of the Insurance Contracts Act prevented it from relying on the terms of the policy, ss 4 and 91 of the Evidence Act, or anything else to avoid the supposed conclusive force of NCAT’s finding that he had a narcissistic personality disorder that severely impaired his ability to practice medicine.

58    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

59    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.

60    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)

61    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.

62    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)

63    Once again, the argument is unsustainable. The question of whether s 47(2) of the Insurance Contract Act could ever apply does not arise because MLC has not pleaded that Mr Quach had any pre-existing condition. MLC relies on the fact that Mr Quach has failed consistently to provide it with material to show that he has satisfied the policy definitions and conditions for the payment of a claim. In any event, if he were entitled to rely on s 47(2), it was up to Mr Quach to establish that he was not aware of, and a reasonable person in the circumstances could not have been aware of, any pre-existing sickness or disability.

64    In essence, Mr Quach’s claim boils down to his assertion that NCAT’s decisions conclusively bind both MLC and the Court to determine that he has been unable continuously to do at least one of the important duties of his occupation because of the cancellation of his registration as a medical practitioner had been caused by NCAT’s finding of his injury or sickness.

65    NCAT’s determination was only evidence for the purpose of this proceeding that NCAT had said that its decision was based on a conclusion that, among others, Mr Quach had a narcissistic personality disorder. As s 91(1) of the Evidence Act provides, that statement was not evidence of the existence of the fact, whatever it was, that he suffered from such a disorder at any relevant time.

66    It was for Mr Quach to prove, as the applicant in the proceeding, that his condition met the terms of the policy which could make MLC liable to pay his claim. Mr Quach not only denied that he was suffering from any illness, but also supplied MLC with a medical report from Dr Skinner that supported his denial that he was impeded from performing his work by reason of some mental or potential mental illness, albeit, that she referred to the diagnoses of two other doctors with whom she evidently did not agree.

67    One condition for payment for total disability under the policy is that the insured not be working for earnings, payment or profit, or if partially disabled, his monthly earnings in his current occupation were lower than before the disability. Although the orders of NCAT prohibited Mr Quach from working in his profession and therefore working, in the case of a claim for total disability, for “earnings” as defined in the policy, the policy required also that he not be working for payment or profit.

68    On 24 December 2020, the Registrar made an order that Mr Quach produce, for the financial years ending 30 June 2008 to 2020, his income, company and trust tax returns, associated with his practice of medicine, notices of assessment and amended assessment, any PAYG summaries and company tax returns for his company, Bennelong Medical Pty Limited. Mr Quach said from the bar table that he was “not aware” of those orders. Whatever the position was at the time when and soon after they were made, he certainly has been aware of them since they were included in the bundle of documents assembled by the parties for tender at this hearing.

69    Once again, Mr Quach led no evidence of his financial position and never provided any to MLC on the evidence of his extensive interactions with it.

70    Another condition of the policy required Mr Quach to be treated for his claimed illness by an appropriately qualified doctor. Yet, once again he led no evidence that he complied with the policy condition that he was being regularly treated by an appropriately qualified doctor.

71    In my opinion, it is plain beyond argument that Mr Quach failed to provide MLC with material to establish that his inability to work was caused by a sickness, being, what he claims to be, a narcissistic personality disorder or any other illness. That is because he never he provided MLC with sufficient material and he has led no evidence in this proceeding to establish, as a fact, that he fell within the policy definitions of totally or partially disabled.

72    Mr Quach made a deliberate, not accidental, decision not to lead any medical evidence. That decision cannot be explained by his being a litigant in person. I have explained to him that he needs to provide proof by medical evidence of his condition. Throughout the proceeding, he has refused to lead any such evidence, including in his affidavit of 4 January 2021 dealing with his failure to obey the order for discovery. He has denied that he has any medical condition. Rather, he makes the assertion that NCAT found that he had one, based on its findings about Dr Petherbridge’s evidence to it. His own treating doctor denied that he had a condition that enlivened MLCs liability to pay under the policy.

73    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

74    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.

75    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.

76    For these reasons, his claim that MLC is in breach of the policy is untenable and must be dismissed with costs.

Associate:

Dated:    2 March 2021