Quach v Health Care Complaints Commission

Court of Appeal (NSW)|2016-03-09|Before: Meagher JA, Leeming JA, McColl JA

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

MEAGHER JA: The Court has before it five notices of motion filed in proceedings 2015/158685. Three of those motions are filed by the applicant, Mr Quach, and two are filed by the first respondent Commission.
The substantive relief sought by the amended summons in these proceedings was described by Leeming JA (with whom McColl JA and I agreed) in the Court's judgment in Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10 at [3]: The substantive matter heard by this Court, in its supervisory jurisdiction regulated by s 69 of the Supreme Court Act 1970 (NSW), was the amended summons dated 12 May 2015 filed by Mr Quach (the Practitioner). That summons is directed to identifying jurisdictional error in two decisions of the New South Wales Civil and Administrative Tribunal (NCAT) made on 5 February 2015 and 21 April 2015: Health Care Complaints Commission v Quach [2015] NSWCATOD 2 and Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32. The first decision resulted in findings of unsatisfactory professional conduct and professional misconduct being made against the Practitioner. The second resulted in orders cancelling his registration as a medical practitioner, preventing his applying to review the cancellation of his registration for a period of seven years, and prohibiting him from providing any health service on a public, private or volunteer basis. …

Preliminary matter

Mr Quach argues that his motions must be heard before three judges of the Court of Appeal. I do not agree. The underlying proceeding was an application in the Supreme Court's supervisory jurisdiction brought with respect to the two decisions of the New South Wales Civil and Administrative Tribunal (NCAT) referred to above. Section 48(2) of the Supreme Court Act 1970 (NSW) provides that such proceedings with respect to a decision of a "specified tribunal" are assigned to the Court of Appeal for determination. The applications made by Mr Quach and the Commission are not for orders or directions which involve the determination of the proceedings for judicial review and for that reason may be dealt with by a single Judge of Appeal: Supreme Court Act, s 46(2)(b).

Mr Quach's motion filed 21 October 2015 (para 3)

By paragraph 3 of this motion, Mr Quach applies for judicial review of a decision of the New South Wales Medical Board (Medical Board) given on 23 September 1999. That Board was constituted by the Medical Practice Act 1992 (NSW), s 129. That Act was repealed by the Health Practitioner Regulation Amendment Act 2010 (NSW), Sch 3, with effect from 1 July 2010.
This application should be dismissed because it cannot be brought by way of motion in the existing proceedings, and because the Tribunal or other body which made the decision, or at least a party representing that body, must be joined as a defendant.
The motion seeks an order that a decision of the Medical Board, made more than 16 years ago, be declared void. That application is made by notice of motion in proceedings which seek judicial review of the two NCAT decisions. The Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provide that proceedings for relief of the kind sought must be commenced by summons and accompanied by material which includes the reasons (if any) for the challenged decision and written submissions of the applicant: UCPR, rr 6.4(1)(b1); 51.45(1),(3); 59.3(1). UCPR, r 59.3(4) requires that the body or person responsible for the decision under review be joined as a defendant. Neither the Medical Board nor any other entity has been joined to the application as the relevant decision-maker, or as representing that decision-maker. The Commission did not make the 1999 decision and would not be the, or a proper responding party to Mr Quach's proposed claim for relief.
There are also fundamental difficulties to Mr Quach succeeding in the proposed claim, assuming it otherwise has some merit. They include that the decision sought to be reviewed was made over 16 years ago; that the Board's decision which involved the imposition of conditions on Mr Quach's registration as a medical practitioner, ceased long ago to have any continuing effect; and that Mr Quach did not pursue his right to appeal to the Medical Tribunal against the Board's decision (see Medical Practice Act, s 17).

Motion filed 28 January 2016

This motion seeks to "invalidate" decisions made by Ms Karen Mobbs, a senior legal officer of the Commission, in relation to the prosecution of the two notices of complaint before NCAT. It also seeks judicial review of a decision made by a Professional Standards Committee on 31 October 2011, following an inquiry into a complaint made under the Health Practitioner Regulation National Law (NSW).
Among other things, it is said that Ms Mobbs, whilst holding the office of Director of Proceedings (see Health Care Complaints Act 1993 (NSW), s 90A), also exercised functions as an Acting Commissioner for periods in 2015. Mr Quach submits that in making decisions during that period concerning the prosecution of the complaints against him, Ms Mobbs acted under the direction or control of the Commissioner, contrary to s 90D of that Act. It is said, as against the Professional Standards Committee, that Mr Quach was denied procedural fairness because of actual bias on the part of one of its members; because the prosecutor before the Committee did not act impartially; and because one of the members of the Committee had a conflict of interest. Mr Quach appears to argue that the "invalidity" of the decisions of Ms Mobbs and the Committee has in turn affected the validity of the NCAT decisions, the two decisions of this Court and proceedings on a leave application in the High Court.
This motion should be dismissed. It seeks to make two claims for judicial review. Those claims are not made in accordance with the UCPR. They are not made in separate proceedings commenced by summons and none of the necessary parties have been joined. In this case those parties are Ms Mobbs and the members of the Committee, against each of whom serious allegations are made. These matters were noted in this Court's 10 February 2016 judgment (see [16]-[17]). As with the earlier motion, there are also difficulties for the success of the proposed claims. The subject matter of the "decisions" of Ms Mobbs is the conduct of the proceedings before NCAT. Mr Quach's challenge to those proceedings by way of judicial review has been dismissed. Secondly, ss 158, 158A and 161 of the Health Practitioner Regulation National Law provide that an appeal may be made to the Medical Tribunal within 28 days of a decision of a Professional Standards Committee. Mr Quach did not exercise that right of appeal.

Motion filed 1 March 2016

By this motion Mr Quach makes three claims to relief. The first is for "judicial review" of this Court's decision of 10 February 2016. The second is for a stay of the two decisions of NCAT which were the subject of that decision. That stay is sought on the basis that a complaint has been made by Mr Quach to the Judicial Commission of New South Wales against Acting Judge Marks, and that that complaint is being investigated. The third is for an order for the "removal of … all conditions of registration".
This motion also should be dismissed. This Court has no jurisdiction to grant "judicial review" of its decision of 10 February 2016. Mr Quach does not seek to invoke the power of this Court to set aside, vary or correct the substantive order dismissing his amended summons: cf UCPR, rr 36.16, 36.17. Nor, it must be added, do the circumstances suggest that there is any basis whatsoever for the exercise of that power.
As to the second claim to relief, that Mr Quach has made a complaint against Judge Marks does not provide any basis for a stay of execution of the orders of NCAT. The fact that his complaint to the Commission is being investigated is not an indicator that it has any substance because the Commission is required to investigate every complaint made to it: Judicial Officers Act 1986 (NSW), s 18. More fundamentally, there are no orders of NCAT, the continued operation of which might be the subject of a stay order. On 21 April 2015, NCAT ordered that Mr Quach's registration be cancelled. That order took effect immediately and Mr Quach's name was removed from the Register of Medical Practitioners, with the consequence that the order has no continuing operation which might be stayed: Quach v Health Care Complaints Commission [2015] NSWCA 187 at [13]-[14].
As to the third claim, it is not clear what "conditions of registration" would be the subject of this order. Mr Quach's registration as a health practitioner has been cancelled and there are no conditions which currently apply to him. If he seeks relief with respect to some earlier decision which imposed conditions, that claim would have to be made in separate proceedings and against the relevant decision maker. The present proceedings have been dismissed as there is no basis for the grant of such relief with respect to the two decisions of NCAT.

Amended Motion filed 30 November 2015 and 're-filed' 16 February 2016

The circumstances in which this amended notice of motion was filed in November 2015 are dealt with in this Court's judgment of 10 February 2016 at [13]-[15]. As originally filed this motion was intended to be an amended version of the motion filed on 21 October 2015. As was noted by Leeming JA at [14], on 7 December 2015 the Registrar refused Mr Quach leave to amend that earlier motion and ordered that the amended notice of motion of 30 November 2015 not be accepted for filing: UCPR r 4.10(4). The effect of that order was that the amended notice of motion was never filed.
By his notice of motion filed on 8 December 2015, Mr Quach sought to challenge that decision and order of the Registrar. That challenge was rejected and the notice of motion dismissed: [2016] NSWCA 10 at [12], [15].
On 16 February 2016, and after this Court had delivered judgment in the substantive proceeding, Mr Quach lodged a copy of the amended notice of motion of 30 November 2015 with the registry. That copy was stamped "received". He now seeks to move on that motion on the basis that it was 'filed' on that day and has not been dealt with previously.
Mr Quach did not have leave to file that document and his attempt to do so on 16 February 2016 was plainly contrary to the intent and effect of the Registrar's order which was expressly upheld by this Court.
Lest there be any doubt as to the present status of that document, I order pursuant to UCPR, r 4.10(4) that the document stamped on 16 February 2016 and entitled 'Amended Notice of Motion 30 November 2015' not be accepted for filing.

Commission's Motion filed 4 March 2016

This motion seeks two orders. The first is that Mr Quach's motion filed on 1 March 2016 be set aside. That application has been dealt with above (see [13]). The second is that the notice to produce filed by Mr Quach on 22 February 2016 be set aside.
That notice seeks the production of documents with respect to the subject matter of para 3 of Mr Quach's motion filed 21 October 2015 and paras 2 and 3 of his motion filed 28 January 2016 (namely, those relating to Ms Mobbs and the Professional Standards Committee).
Each of those motions has been dismissed. There being no substantial application before the Court to which the notice to produce is directed, it may be and is dismissed. This makes it unnecessary to embark upon any consideration of the extent to which the notice was directed to the production of material which might properly have been sought in such an application.

Commission's Motion filed 22 February 2016

The Commission seeks an order that Mr Quach not file any further document in proceedings 2015/158685 unless leave to do so has previously been given, either by a judge or registrar of the Court. The Commission initially submitted that such an order should be made under s 61(2)(c) of the Civil Procedure Act 2005 (NSW).
That section provides: 61 (1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings. (2) In particular, the court may, by order, do any one or more of the following: … (c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate.
One difficulty with the application of this provision in the present case is that the real issues in the proceedings between these parties have been determined and Mr Quach's amended summons dismissed. The problem which confronts the Court and the respondent is that Mr Quach does not seem prepared to accept that determination.
In the course of oral argument the parties were referred to the decision of this Court (Handley AJA, Allsop P and Beazley JA agreeing) in Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324; 81 NSWLR 771. There it was held that in the exercise of its inherent power, the Court may act of its own motion to prevent a potential abuse of its process. Mrs Teoh sought to appeal from a decision of the Land and Environment Court. She required leave to do so. She failed three times to persuade this Court that she had arguable grounds for leave. In those circumstances, Handley AJA observed at [32]: The Court however has a duty to conserve its resources and ensure as far as possible that they are available for other litigants. It is therefore entitled to protect itself and its proceedings from abuse by a litigant who may wish to make a fourth application for the same relief.
Acting of its own motion, the Court directed the Registrar to promptly vacate the return date of any further motion filed by Mrs Teoh seeking in substance the same relief; to notify the parties; and to refer the papers to a Judge nominated by the President to determine, in chambers, whether the Court should fix a new return date or whether Mrs Teoh should be invited to show cause in writing why the Court should not in chambers summarily dismiss the further application as vexatious and an abuse of process.
In oral argument the Commission submitted that Mr Quach's continued attempts to broaden the scope of the subject matter of his application for judicial review, which was dealt with in this Court's judgment of 10 February 2016, constitute an abuse of process. It sought an order of the kind made in Teoh, not only to protect the Court and its process from abuse, but also to avoid unnecessary expenditure of financial and human resources on its part.
The history of the applications made by Mr Quach in relation to the judicial review of the two NCAT decisions is sufficiently recorded in the decisions of this Court in Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63 at [16]-[26] and in [2016] NSWCA 10 at [3]-[18].
Since that second judgment was delivered, Mr Quach has sought to re-file the amended notice of motion of 30 November 2015 (see [18] above), filed the notice of motion of 1 March 2016 (see [14] above) and continued to press his notice of motion of 28 January 2016 (see [11] above). That has occurred notwithstanding the many indications he has received that further claims for substantive relief by way of judicial review could not be brought by notice of motion in proceedings 2015/158685 (see for example, [2016] NSWCA 10 at [16]-[18]).
I am satisfied that it is likely Mr Quach will continue to make such applications. In his oral argument, Mr Quach asserted that he was entitled in these proceedings to continue to raise and press "in the interests of justice" the arguments which he has sought to make concerning challenges to conduct or decisions which preceded the decisions of NCAT on the basis that they contributed in some way to the outcome of those proceedings before NCAT. Furthermore, in his written submission to this Court, Mr Quach maintained that he "will not terminate this proceeding".
That being the position, this Court should make an order in similar terms to that made in Teoh to prevent the potential further abuse of its process and the incurring of unnecessary expense by, and the wasting of the resources of, the Commission.

Orders

I make the following orders:
Paragraph 3 of Mr Quach's notice of motion filed 21 October 2015 dismissed.
Mr Quach's notice of motion filed 28 January 2016 dismissed.
Mr Quach's notice of motion filed 1 March 2016 dismissed.
Order that the copy of Mr Quach's amended notice of motion stamped 'received' by the Court on 16 February 2016 not be accepted for filing.
Order Mr Quach pay the costs of the applications in orders 1, 2, 3 and 4 above.
Set aside Mr Quach's notice to produce filed 22 February 2016.
Otherwise dismiss the Commission's notice of motion filed 4 March 2016.
Direct the Registrar, should Mr Quach file any further notice of motion in these proceedings (other than an application seeking a review of this decision), to vacate the return date of that motion, notify the parties and refer the papers to a judge nominated by the President to determine, in chambers, whether the Court should fix a new return date and notify the parties of that date, or whether Mr Quach should be invited to show cause in writing why the Court should not in chambers summarily dismiss the application as vexatious and an abuse of process.
Order Mr Quach pay the Commission's costs of its motions filed 22 February 2016 and 4 March 2016.

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Health Practitioner Regulation Amendment Act 1992(NSW)

Medical Practice Act 1992(NSW)

Health Practitioner Regulation Amendment Act 2010(NSW)

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