Nicholl Holdings Pty Ltd v Tokio Marine & Fire Insurance Co Ltd
[2007] QCA 57
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- Unreported Judgment
- Appeal Determined (QCA)
- Nicholl Holdings Pty Ltd v Tokio Marine & Fire Insurance Co Ltd[2007] QCA 57
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Nicholl Holdings Pty Ltd v Tokio Marine & Fire Insurance Co Ltd[2007] QCA 57
Nicholl Holdings Pty Ltd v Tokio Marine & Fire Insurance Co Ltd[2007] QCA 57
SUPREME COURT OF QUEENSLAND
CITATION: | Nicholl Holdings P/L v Tokio Marine & Fire Insurance Co Ltd [2007] QCA 57 |
PARTIES: | NICHOLL HOLDINGS PTY LTD ACN 063 703 748 |
FILE NO/S: | Appeal No 10484 of 2006 DC No 72 of 2003 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | District Court at Cairns |
DELIVERED ON: | 2 March 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 February 2007 |
JUDGES: | Keane and Holmes JJA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: | 1. Appeal dismissed 2. Plaintiff to pay the defendant's costs of the appeal |
CATCHWORDS: | PROCEDURE - INFERIOR COURTS - QUEENSLAND - DISTRICT COURTS - CIVIL JURISDICTION - PRACTICE - DISPOSITION WITHOUT TRIAL - where defendant applied for summary judgment under r 293 of the Uniform Civil Procedure Rules 1999 (Qld) on basis that plaintiff had no real prospect of success - where plaintiff submitted prospect of success was determined by reference to unduly stringent standard - whether summary judgment should have been given Uniform Civil Procedure Rules 1999 (Qld), r 293 Medical Act 1939 (Qld), s 48 |
COUNSEL: | D J Campbell SC for the appellant M A Jonsson for the respondent |
SOLICITORS: | Miller Harris Lawyers for the appellant MacDonnells Law for the respondent |
- KEANE JA: The plaintiff brought an action for moneys alleged to be owing by the defendant to the plaintiff for medical services rendered by the plaintiff to tourists holding policies of travel insurance with the defendant. The defendant applied pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR") for summary judgment on the footing that the plaintiff had "no real prospect of succeeding" in its claim. The learned primary judge acceded to the defendant's application and gave judgment in the action for the defendant.
- The plaintiff contends that the learned primary judge erred in failing to conclude that the plaintiff's claim was one which has "real prospects" of being established at trial.[1] I shall discuss the plaintiff's contentions after first setting out the elements of the plaintiff's claim in the action, and the grounds of the learned primary judge's decision.
The plaintiff's claim
- The contractual basis of the plaintiff's claim against the defendant was propounded in the amended statement of claim:
"5.From 1993 until 1999 the plaintiff and the defendant engaged in the following course of conduct –
(a)The plaintiff rendered medical treatment and services to customers of the defendant;
(b)At the time of treatment the customers of the defendant completed a claim form in a form approved by the defendant ('claim form');
(c)The plaintiff did not seek payment from the customers of the defendant;
(d)After rendering treatment the plaintiff submitted the claim form to the defendant, or the defendant's authorised agent, SOS International Pty Ltd (previously named AEA Pty Ltd), together with its invoice in respect of the services rendered;
(e)The defendant attended to payment of the plaintiff's invoices.
('the course of conduct')
…
10.1At all material times, there was a contract in force between the plaintiff and defendant, the terms of which were -
10.1.1The plaintiff would provide medical treatment and/or services to persons ('customers') who:-
10.1.1.1sought medical treatment and/or services from the plaintiff;
10.1.1.2who were insured by the defendant in respect of the cost of medical treatment and/or services; and
10.1.1.3signed and provided to the plaintiff an Overseas Travel Accident Insurance Claim in the form approved by the defendant ('Claim Form').
10.1.2Within a reasonable time of the receipt by it or its agent of the said Claim Form and the plaintiff's invoice for the cost of the said medical treatment and/or services, the defendant would pay the amount invoiced for the provision of the said medical treatment and/or services.
10.2Particulars of the formation of the contract are as follows:-
10.2.1The contract was not oral.
10.2.2The contract was not in writing save for the written documents exchanged in the course of conduct.
10.2.3The contract was made by the course of conduct."
- The plaintiff alleges that, from 1 February 1999 to April 2000, it provided medical services to policy holders of the defendant. The policy holders in question signed approved claim forms which were sent by the plaintiff to the defendant with the plaintiff's invoices. The plaintiff's action relates to approximately 350 individual claims, for services provided to the value of $114,515.85, during the period from 1 December 1999 to April 2000.[2]
- The plaintiff also made a claim against the defendant "in quantum meruit pursuant to the agreement" earlier alleged by the plaintiff, and a claim founded upon the contention that the defendant "is estopped from denying that there exists between the plaintiff and the defendant a binding agreement in the terms" asserted by the plaintiff.
- In July 2000, the defendant sought a review of the plaintiff's accounts pursuant to
s 48 of the Medical Act 1939 (Qld). This statutory provision conferred upon "a party chargeable" a right of review by the Medical Board of the amount of any account of a medical practitioner. The Medical Board determined in November 2001 that the quantum of some of the plaintiff's accounts were unreasonable. The defendant appealed that decision to the Health Practitioners Tribunal where the plaintiff's position was vindicated. The plaintiff argued that the defendant's assertion of a right of review constituted an admission that it was, in truth, obliged to pay the plaintiff's accounts and the basis for an estoppel against the defendant denying this obligation.
The decision of the learned primary judge
- The essential reasoning of the learned primary judge is in the following passage:
"In my view in order to be satisfied that there was a contract in existence between the parties to this action it is necessary that the court be satisfied that it is the only reasonable inference to be drawn. The difficulty in this case is that there is another and more obvious inference to be drawn from the conduct of the parties alleged in this case. It is common ground that the patients in respect of which the plaintiff claimed fees for medical services were travel insurance policy holders with the defendant. In my view therefore it may obviously be inferred that the defendant had contractual relationships with all of its policy holders based on the terms of the insurance policy or contract. The obvious inference is that the defendant had a legal obligation to pay for medical services obtained by the defendant's policy holders within the terms of the travel insurance policies involved. In the instances in which the defendant paid the plaintiff for medical services provided, the plaintiff did not simply provide a bill for the medical services it provided a duly completed claim form signed by the patient directed to the defendant. In my view the most obvious inference is that the defendant paid the plaintiff in fulfilment of its legal obligation to its individual policy holders, not in fulfilment of any legal obligation the defendant had to the plaintiff. I am therefore of the view that even if the plaintiff were able to prove all of the facts alleged in the Statement of Claim no court could be satisfied on the balance of probabilities that the conduct of the parties alleged gave rise to any binding contract between them.
…
… there are a number of material matters of fact which a plaintiff must prove in order to establish an estoppel. That being the case the plaintiff's Amended Statement of Claim in my view is totally inadequate. It is necessary for the plaintiff to allege the material facts which give rise to the estoppel. However, if there is any factual basis for arguing that an equitable estoppel exists, the plaintiff should be given the opportunity to replead that issue.
The starting point in my view is the identification of the detriment. In my view, the only detriment which the plaintiff can claim is that, in relation to the approximately 350 instances in which medical services were provided to persons who held travel insurance policies with the defendant, the plaintiff failed to obtain payment for such services from those patients. The second point for consideration is the identification of the words or conduct on the part of the defendant which induced the plaintiff to act to its detriment. The only conduct on the part of the defendant which in my view could possibly be said to have induced the plaintiff to act to its detriment is the history of payment of the plaintiff's invoices previously rendered to the defendant.
For the purposes of this application I am prepared to accept that as a result of the years of paying the plaintiff's invoices the plaintiff was subjectively at least, induced to believe that the defendant would continue doing so. However … an expectation that the defendant would keep paying falls well short of an assumption that 'a particular legal relationship existed between the plaintiff and the defendant' so that the plaintiff assumed, not only that the defendant would pay, but that it was legally obliged to the plaintiff to make such payments. The unconscionable conduct of the appellant in the Walton Stores case in knowingly permitting the respondent to act on the false belief that a contract had been entered into and remaining silent is worlds away from the conduct of the defendant in this case. The affidavit of Harry Yasugi filed on behalf of the defendant in this case has not been disputed by the plaintiff. Ex HY1, HY2 make it quite clear that the plaintiff was disavowed [sic] of any false impression it might have previously obtained from the prior conduct of the defendant in paying its claims.
…
I am prepared to accept that in some circumstances the institution of proceedings before the Medical Board of Queensland might be construed as evidence of an admission of legal liability to the medical practitioner claiming the charges. However, I reject entirely the suggestion that by resorting to the Medical Board review of the reasonableness of the charges, the defendant could only do so after admitting liability to pay those charges, subject to them being reasonable. It is tolerably clear that the plaintiff claimed and has always claimed that the defendant was liable to it in respect of those charges. In my view the defendant was entitled to have the reasonableness of those charges tested irrespective of its attitude to whether or not it was legally liable to the plaintiff at all."
The plaintiff's contentions
- The plaintiff fastens upon the learned primary judge's reference to the necessity for the court to be satisfied that "the only reasonable inference to be drawn" is that a contract has been concluded between the parties in the terms propounded by the plaintiff. The plaintiff argues that the learned primary judge addressed the plaintiff's prospects of ultimately succeeding in its claim by reference to an unduly stringent standard.
- This criticism of the learned trial judge's reasoning is misconceived. His Honour was not concerned, in the sentence seized upon by the plaintiff, to state the test to be applied under r 293 of the UCPR. Rather, he was concerned with whether the making of the contract propounded by the plaintiff was an inference reasonably available from the facts alleged by it. Those facts can establish no more than that both plaintiff and defendant acted on the footing that the plaintiff was receiving from the defendant moneys paid by it pursuant to its obligations to its insured clients. The circumstance that these receipts were apt also to discharge the obligation of each insured to pay the plaintiff for services rendered by it in no way suggests that the defendant was under a legal obligation to the plaintiff. In these circumstances, the learned primary judge could reach no conclusion other than that the plaintiff had no prospects at all of establishing its claim at a trial.
- In my respectful opinion, his Honour's view is the only sustainable legal conclusion from the facts alleged in paragraph 5 of the statement of claim. The defendant's insured were clearly liable to pay for the services rendered by the plaintiff. There was no suggestion by the plaintiff to the contrary. Payment by the defendant for the services rendered by the plaintiff was dependent upon the enforceability of the defendant's obligation to indemnify its insured against his or her liability to the plaintiff. The view for which the plaintiff contends cannot accommodate the obvious possibility that the defendant might, in some cases, lawfully refuse indemnity to its insured. It could not possibly be contended that, in such cases, the defendant was liable to pay the plaintiff for services rendered by it. It may be argued that the facts alleged in paragraph 5 of the statement of claim are at least consistent with the possibility that both the defendant and its insured were under an obligation to pay the plaintiff for services rendered by it to the insured; but that argument cannot be accepted. It could not seriously be suggested that, if the defendant paid a claim by its insured by making a payment directly to that insured, and the insured failed to pay the plaintiff, the defendant would nevertheless remain liable to pay the plaintiff.
- It must also be said that the facts pleaded in paragraph 5 of the statement of claim, and, indeed, the argumentative conclusions drawn from them in paragraph 10 of the statement of claim, assert no basis for inferring that an expectation had been generated by the defendant's conduct, so as to bind the defendant to pay the plaintiff for services rendered to the defendant's insured for some indefinite period of time into the future. Neither the facts pleaded by the plaintiff, nor the evidence adduced on its behalf, contain any suggestion of an agreement on the defendant's behalf that it would meet the plaintiff's claims for services rendered in the future to persons insured by the defendant. There was no suggestion in the pleading or the evidence that the defendant requested the plaintiff to refrain from charging individual customers and to charge the defendant instead or made a promise that, in return for the plaintiff providing services to persons insured by the defendant and refraining from charging them for those services, the defendant would assume the liability to pay the plaintiff for those services. Nor did the plaintiff's case include an allegation that the plaintiff did, in fact, refrain from billing clients directly in reliance upon an intimation from the defendant that future accounts for services to the defendant's clients would be met by the defendant. The plaintiff's case is bereft of any allegation of fact from which an objective bystander could conclude that any expectation of direct payment by the defendant for any services rendered in the future had been generated by the conduct of the defendant.
- It is abundantly clear that the absence of any allegation of such promises or understandings, quid pro quo,[3] as between plaintiff and defendant was not a matter of oversight which might be cured if the action were allowed to proceed. In the evidence adduced by the defendant in support of its application under r 293 of the UCPR was a letter dated 30 November 1999 from the defendant to the plaintiff in the following terms:
"Tokio Marine are prepared to pay for reasonable medical services rendered to our insured. Tokio Marine will not however make any further payments directly to your clinic for medical services rendered to our insured. Further medical services rendered to our insured will require your clinic to render an account to our client." (emphasis added)
- In the light of this communication, which predated all the services for which the plaintiff actually sought payment in the action, the plaintiff could have had no expectation of payment directly from the defendant for services provided by the plaintiff to the defendant's insured clients. No such expectation could stand with the defendant's express statement that its intentions were to the contrary.
- In oral argument, Senior Counsel for the plaintiff argued that the learned primary judge had overlooked evidence by the principal officer of the plaintiff of discussions between the plaintiff and the defendant or its agents (which may have included dealings in December 1999 and thereafter) in relation to services rendered to the defendant's insured. It was said that this evidence bore upon the course of conduct between the parties; but the evidence in question was entirely consistent with the defendant's case that payments to the plaintiff were made in discharge of the defendant's obligation to indemnify its insured against the liability of the insured to the plaintiff. The likelihood is, not that his Honour overlooked this evidence, but that his Honour was unable to see that this evidence added anything to the plaintiff's pleaded case.
- For my part, I am unable to see how this evidence is apt to improve the plaintiff's prospects of success in attempting to propound a contract established by a course of conduct between plaintiff and defendant. Rather, the circumstance that the plaintiff was unable to explain in any meaningful way at all, its conduct after receipt of the defendant's letter of 30 November 1999, only serves to highlight the hopelessness of the plaintiff's claim.
- So far as the plaintiff's claim founded in quantum meruit is concerned, the plaintiff identified no basis for that claim other than the contract upon which it relied. For the same reason, then, it too must fail.
- So far as the plaintiff's claim founded on estoppel is concerned, no occasion arises for the operation of an estoppel against the defendant's assertion that it was not obliged to pay the plaintiff for services rendered to the defendant's insured clients. It is not as if the defendant is now seeking, for the first time, to assert that it had not agreed to pay the plaintiff for services rendered to its clients. Its attitude was made abundantly clear by the letter of 30 November 1999 to which reference has been made. No arguable case arises whereby the doctrine of estoppel might now be invoked by the plaintiff to prevent the defendant seeking to falsify the assumptions on which the plaintiff proceeded. The defendant made the basis on which it intended to proceed abundantly clear by the letter of 30 November 1999, that is, before any of the services the subject of the plaintiff's action were rendered.
- The plaintiff also attempted to rely upon the defendant's invocation of the review process established by s 48 of the Medical Act in favour of a party chargeable with an account, as an admission that the defendant was a party chargeable with the accounts. In this regard, there is no evidentiary basis for the argument by the plaintiff that the pursuit by the defendant of this review procedure, and any consequent expense and inconvenience incurred or endured by the plaintiff, served to create an estoppel in the plaintiff's favour. The defendant's invocation of the review procedure was not said by the plaintiff to have created a belief in the plaintiff that the defendant conceded that it was liable to the plaintiff or that the plaintiff incurred expense on the faith of that belief. Indeed, no such suggestion could have been honestly advanced by the plaintiff. The defendant made it expressly clear to the Medical Board, and to the plaintiff by its submissions in that tribunal, that it regarded itself as a "party chargeable" with the plaintiff's accounts on the basis that the plaintiff itself asserted that it was "chargeable" with the accounts.
- The plaintiff also sought, in its written submissions, to rely upon the plaintiff's pursuit of the review proceedings as an admission. This submission must be rejected. One may put to one side any difficulties that may attend the probative value of such an admission insofar as it involves matters of mixed law and fact.[4] There was here no unequivocal and unqualified admission by the defendant of its legal responsibility to pay the plaintiff's accounts. An equivocal and belated admission by the defendant of its responsibility for the plaintiff's accounts cannot alter the legal rights previously established. Nor can it affect the legal correctness of the conclusion that the plaintiff's claim cannot succeed at a trial.
Conclusion and orders
- The learned primary judge was correct to accede to the defendant's application under r 293 of the UCPR.
- The appeal should be dismissed and the plaintiff should pay the defendant's costs of the appeal.
- HOLMES JA: I agree with the reasons of Keane JA and with the orders he proposes.
- MACKENZIE J: Keane JA’s analysis of the nature of the relationship between the appellant and the respondent, with which I agree, inevitably leads to the result that the learned judge of the District Court was correct to find that there was no real prospect of the appellant succeeding on the claim that there was a contract formed by the “course of conduct” between the parties.
- I also agree with Keane JA’s reasons with regard to quantum meruit, estoppel and the consequences alleged to flow from the respondent engaging in the review process under the Medical Act 1939 (Qld). I agree with the orders proposed by him.
Footnotes
[1] Cf Foodco Management Pty Ltd v Go My Travel Pty Ltd [2002] 2 Qd R 249 at 254; [2001] QSC 291; Queensland University of Technology v Projects Constructions (Aust) (In Liq) [2003] 1 Qd R 259 at 264 – 265; [2002] QCA 224; Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at 237; [2005] QCA 227.
[2] Nicholl Holdings Pty Ltd v Tokio Marine & Fire Insurance Co Ltd, unreported, White DCJ, DC No 72 of 2003, 3 November 2006 at [4].
[3] Cf Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424 at 461.
[4] Cf Grey v Australian Motorists & General Insurance Co Pty Ltd [1976] 1 NSWLR 669 at 675, 684 - 685; Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317.