Quach v Davenport

A INTRODUCTION AND BACKGROUND 1 This is an application for leave to appeal (application) brought by Dr Michael Van Thanh Quach, against the summary dismissal of two proceedings pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The two proceedings are: (1) Dr Michael Van Thanh Quach v Helen Davenport (QUD 336 of 2024); and (2) Dr Michael Van Thanh Quach v Mark Phillip McIntyre (QUD 336 of 2024). 2 The reasons for dismissing both proceedings are set out by the primary judge in Quach v McIntyre [2024] FCA 564 (J). 3 It is unnecessary to set out the factual background giving rise to this application in any detail, for two reasons. The first is that the primary judge (at J [23]-[33]) set out comprehensively the facts giving rise to the underlying dispute. The second is that none of the factual findings made by the primary judge are the subject of the proposed appeal if leave to appeal is granted. 4 Before coming to the narrow focus of the proposed grounds of appeal (and hence this application), it is necessary to say something about the relevant principles.

B RELEVANT PRINCIPLES 5 In Nationwide News Pty Limited v Rush [2018] FCAFC 70 (at [2]-[4]), I set out the principles informing a determination as to whether to grant leave to appeal from a decision of a single judge, with which Allsop CJ and Rares J agreed. They are not novel and the starting point is that in exercising the power to grant leave regard must be had to the statutory charge in s 37M(3) of the FCA Act, that the power to grant leave must be exercised or carried out in a way which best promotes the overarching purpose. 6 Consistently with the facilitation of a just resolution, an applicant must usually show that: (a) in all the circumstances, the decision to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal; and (b) supposing the decision to be wrong, substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (at 398-399 per Sheppard, Burchett and Heerey JJ). The sufficiency of the doubt in respect of the decision to be appealed and the question of substantial injustice bear upon each other so that the degree of doubt which is sufficient in one case may be different from that required in another. It has also been said that the considerations are cumulative such that leave ought not be granted unless each limb is made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; (2010) 81 ATR 36 (at 38 [5] per Ryan, Stone and Jagot JJ); Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2017] FCAFC 98; (2017) 252 FCR 1 (at 4 [3] per Jagot, Yates and Murphy JJ).

C PROPOSED GROUNDS OF APPEAL 7 The proposed grounds of appeal are as follows: 1. Res judicata does not apply for interlocutory proceedings, pursuant to Dr Michael Van Thanh Quach v MLC Life Limited (No 4) [2020] FCA 532 at [24], Griffiths J referencing Zetta Jet Pte Ltd v The Ship "Dragon Pearl" (No 2) [2018] FCAFC 132; 265 FCR 290 at [14] ff per Allsop CJ, Moshinsky and Colvin JJ). 2. s 31A (5) Federal Court of Australia Act 1976 (Cth) excludes criminal proceedings from applications for summary judgement. 3. There is no source of power for Thawley J to make a finding that the proceeding is 'not a "criminal proceedings" within the meaning of s 35A(5).' [sic] 8 It is convenient to deal initially with grounds two and three.

D GROUNDS TWO AND THREE 9 As Dr Quach explained in his oral and written submissions, grounds two and three each turn upon the proper construction of s 31A of the FCA Act, which is in the following terms: Summary judgment (1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is prosecuting the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding. (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. (4) This section does not limit any powers that the Court has apart from this section. (5) This section does not apply to criminal proceedings. 10 By dint of subsection (5), if the two proceedings before the primary judge were "criminal proceedings", it follows there was a want of power under s 31A to dismiss the proceedings summarily. 11 The argument Dr Quach intends to advance on any appeal is that the proceedings that were summarily dismissed were, in fact, criminal proceedings as that term is defined in s 31A(5). This is said to be because the proceedings involved an assertion that two individuals, namely Ms Helen Davenport and Mr Mark Phillip McIntyre (together, respondents), were guilty of "cartel conduct" as that concept is defined in the Competition and Consumer Act 2010 (Cth) (at J [34]). 12 The determinative part of the primary judge's reasons in rejecting the contention that the proceedings before the Court were criminal proceedings within the meaning of s 31A(5) is set out (at J [51]-[52]) where his Honour observed: [51] Dr Quach submitted that both proceedings were "criminal proceedings" and that the respondents were "statute barred" from applying for summary judgment by reason of s 31A(5) of the FCA Act. [52] Making a contract containing a cartel provision or giving effect to a cartel provision are indictable offences - see: ss 45AF and 45AG of the CCA. Dr Quach has no authority to bring criminal proceedings in relation to an indictable offence in this Court - see: Taylor v Attorney-General (Cth) [2019] HCA 30; (2019) 372 ALR 581 at [17] - [23]; Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313 at [36]-[39]; Quach v AHPRA at [19], [20]. The proceedings commenced by Dr Quach against Mr McIntyre and Ms Davenport are not "criminal proceedings" within the meaning of s [31A(5)]. 13 The difficulty for Dr Quach is that there is existing authority on the construction of s 31A(5) of the FCA Act that is directly in conflict with his submission that the proceedings before the primary judge are "criminal proceedings". As Abraham J explained in another proceeding in which Dr Quach was the applicant, Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313 (at [36]): [36] … The applicant submitted that he is bringing a private prosecution against Ms Barekzai pursuant to s 13 of the Crimes Act. The applicant asserts that Ms Barekzai has committed a criminal offence contrary to s 150.1 of the Criminal Code. His submissions also make clear that he is pursuing her for having committed a criminal offence, as he contended that this Court has criminal jurisdiction by virtue of the National Practice Area for Federal Crimes and Related Proceedings. This Court does not have a general criminal jurisdiction, although it does have such jurisdiction in respect to some matters. The existence of a National Practice Area does not create a general jurisdiction not otherwise provided. He also contended that the Criminal Rules apply to the determination of these proceedings, and not the FCR. The applicant has not and, as explained below, could not comply with the Criminal Rules. The applicant has commenced these proceeding by filing an originating application and statement of claim, which is susceptible to an application for summary dismissal. As is apparent from s 31A of the FCA Act "criminal proceedings" are excluded from the scope of an application for summary judgment. However, these proceedings do not fall within that concept, as defined. That term is defined in sch 1 of the Criminal Rules as meaning any of the following proceedings: (a) criminal appeal proceedings, (b) indictable primary proceedings, and (c) summary criminal proceedings. Relevantly, "indictable primary proceedings" is defined in s 23AB of the FCA Act: see Note 2 to r 1.11 of the Criminal Rules. These proceeding brought by the applicant do not fall within the scope of s 23AB and plainly nor does it fall within the scope of "criminal appeal proceedings" or "summary criminal proceedings". Accordingly, these proceedings are not criminal proceedings within the definition of the FCA Act. It follows that there is no proper basis for the applicant's assertion that s 31A of the FCA Act and r 26.01 of the FCR does not apply. 14 I respectfully agree with the conclusion of the primary judge (on the application for leave to appeal from the decision of Abraham J) that her Honour's analysis set out above is plainly correct: see Quach v Australian Health Practitioner Regulation Agency (Extension of Time) [2023] FCA 57 (at [20] per Thawley J). 15 It follows that there is no substance in proposed grounds two and three.

E GROUND ONE 16 This ground, as Dr Quach developed in oral submissions, has two components. 17 The first is that the concept of res judicata should not prevent Dr Quach reagitating his argument as to statutory construction, notwithstanding that it had been rejected by Abraham J in another case (and it should not prevent him reagitating his argument on any appeal from the decision below). 18 To the extent that it matters, this contention is correct: the principle of preclusion known as res judicata is directed to a different purpose, and it was, of course, open to Dr Quach to advance his contention as to the meaning to be given to the term "criminal proceedings" before the primary judge notwithstanding what had been found by Abraham J - just as he has the right to challenge the determination of the primary judge by seeking leave to appeal (as he does by way of this application). But this contention goes nowhere. The primary judge did not reject the argument below because Dr Quach was somehow bound by a previous ruling. It was rejected by the primary judge because it was wrong at law (being a conclusion I respectfully consider is correct). 19 The second aspect is that by making reference to previous judgments, counsel acting on behalf of the respondents in one or other of the primary proceedings contravened s 91 of the Evidence Act 1995 (Cth), which 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. 20 This contention is without substance and merely needs to be stated to be rejected: reference to prior authority does not involve a party seeking to adduce evidence of a fact that was in issue in that prior proceeding, and ground one must also fail.

F CONCLUSION 21 For the above reasons, the first limb of the Décor test is plainly not satisfied. The application for leave to appeal must be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.