Quach v Horvarth

The relevant law

1. The relevant sections of the Medical Practice Act are s 3-5, 12, 14-16, 56, 129 and 189. They read as follows: 3 Definitions (1) Expressions used in this Act (or in a particular provision of this Act) which are defined in the Dictionary at the end of this Act have the meanings set out in the Dictionary. … Dictionary 1 Defined expressions In this Act: … Board means the New South Wales Medical Board constituted by this Act. … President means the President of the Board. … (Part 2, Division 1) 4 Entitlement to general registration based on qualifications and training (1) A person is entitled to be registered as a medical practitioner if the person has recognised medical qualifications and has successfully completed a period of internship or supervised training as required by the Board. (2) A person has recognised medical qualifications if the person: (a) is a graduate of a Medical School (whether within or outside Australia) accredited by the Australian Medical Council, or (b) has successfully completed examinations held by that Council for the purposes of registration as a medical practitioner, or (c) has received a certificate or other kind of qualification in accordance with a process approved by the Board for the purpose of qualifying a person for registration as a medical practitioner. (3) The entitlement under this section is an entitlement to general registration. 5 Entitlement to conditional registration for interns (1) A person is entitled to be registered as a medical practitioner subject to appropriate conditions if the person would be entitled to registration under section 4 except for the fact that he or she has not completed a period of internship or supervised training required by the Board. (2) The appropriate conditions of registration are such conditions as the Board thinks appropriate for the purpose of enabling the person to complete that internship or training. … (Part 2, Division 2) 12 Registration may be refused despite entitlement or eligibility The provisions of this Division override any entitlement to or eligibility for registration under Division 1. 13 Practitioner entitled to attend (1) The person in relation to whom an inquiry is being held is entitled to attend and to be accompanied by an Australian legal practitioner or another adviser, but is not entitled to be represented by an Australian legal practitioner or other adviser. (2) This clause does not prevent an inquiry from proceeding in the absence of the person in relation to whom the inquiry is being held, as long as the person has been given notice of the inquiry under clause 11. 13A Commission to be notified of inquiry (1) The Commission is to be given at least 7 days notice of an inquiry and may, if the Board consents, appear at the inquiry. (2) The Commission may appoint an officer of the Commission to appear at the inquiry on behalf of the Commission. (3) This clause does not apply if the inquiry relates solely or principally to the physical or mental capacity of an applicant to practise medicine. 14 Provisions concerning witnesses etc Schedule 2 applies to and in respect of a person or witness appearing or evidence given at an inquiry in the same way as it applies to a person or witness appearing or evidence given before a Committee. 15 Constitution of Board for inquiry (1) If the Board decides to hold an inquiry, the Board is to appoint 3 persons to conduct the inquiry. (2) The persons appointed to conduct the inquiry need not be members of the Board. (3) The persons appointed to conduct an inquiry are taken to constitute the Board for the purposes of the inquiry and, accordingly, may exercise the functions of the Board in relation to the inquiry. (4) The persons so appointed are taken to be members of the Board for the purposes of this Act and may exercise the functions of such a member in relation to an inquiry. … 129 Board constituted as a corporation (1) There is constituted by this Act a corporation under the corporate name of the New South Wales Medical Board. (2) The Board is a continuation of, and the same legal entity as, the New South Wales Medical Board constituted under the Medical Practitioners Act 1938. … 189 Protection from liability No matter or thing done or omitted to be done by a person as: (a) the Registrar, or (b) the Board, or (c) an Impaired Registrants Panel, or (c1) a Performance Review Panel, or (c2) an assessor, or (c3) an authorised person, or (d) a Committee, or (e) the Tribunal, or (f) any member of the Board, an Impaired Registrants Panel, a Performance Review Panel, a Committee or the Tribunal or a person acting under the direction of the Board, an Impaired Registrants Panel, a Performance Review Panel, a Committee or the Tribunal, or (g) nominal complainant for the purposes of clause 8 of Schedule 2, if the matter or thing was done or omitted to be done in good faith for the purposes of executing this or any other Act, subjects the person personally to any action, liability, claim or demand.
2. Schedule 1 cl 9(1) and cl 11 of the Medical Practice Act provide: "9 Inquiries by Board (1) The Board may hold an inquiry, in such cases as it considers appropriate, into the eligibility of an applicant to be registered as a medical practitioner. (2) An inquiry may include an inquiry into the applicant's competence to practise medicine. (3) In this clause, a reference to the eligibility of an applicant to be registered as a medical practitioner includes the following: (a) the eligibility of an applicant who has been granted registration of a kind referred to in section 5 (conditional registration for interns) or section 9 (non-practising registration) to be granted registration of a kind referred to in section 4 (general registration), (b) the eligibility of an applicant whose name has been removed from the Register, and whose application for registration is not required to be rejected under section 14, to be re-registered as a medical practitioner. … 11 Applicant to be notified of inquiry The Registrar is to fix a time and place for the holding of an inquiry and is to cause the applicant concerned to be given at least 14 days' notice in writing of the time and place for the inquiry."

Dr Quach's submissions

1. While not in his affidavit dated 3 March 2021 ("MQAff 030321"), Dr Quach submitted that he has a medical degree, Bachelor of Medicine Bachelor of Surgery, from the University of Sydney. He also submitted that he was registered with the New South Wales Medical Board for a number of years as a medical student, and was not deregistered as a medical student. However he did not produce any evidence to substantiate these assertions. (T17.14-18)
2. Dr Quach submitted that having obtained "recognised medical qualifications" under s 4(2)(a) of the Medical Practice Act, he was entitled to be registered as a medical practitioner under s 5 of the Medical Practice Act as at 19 January 1999. Therefore, Dr Quach correspondingly submitted that the question of his eligibility to be registered as a medical practitioner under the Medical Practice Act does not arise.
3. Dr Quach submitted that Professor Horvarth ordered a Schedule 1 inquiry under the Medical Practice Act as at 19 January 1999, based on an allegation of a complaint from the Canberra Hospital. Dr Quach submitted that in February 2020 he discovered that there was no complaint from the Canberra Hospital to establish the "jurisdictional fact" required for the NSW Medical Board to order a Schedule 1 inquiry. See: Gedeon v NSW Crimes Commission HCA 43 at [43].
4. In support of his submission, annexed to MQAff 030321 as Annexure B are copies of correspondence between Dr Quach and Canberra Hospital regarding whether there had been letter of complaint made against him. Ultimately on 6 February 2020, the Director of Medical Officer Support at the Employment and Training Unit of Canberra Health Services advised Dr Quach by email that: "I have received your personnel file from archives and there is no correspondence to or from the NSW Medical Board on record. The only documents on your file are related to your on-boarding as an intern and then your resignation and normal off-boarding documents."
5. Finally Dr Quach submitted that this 'prosecution' of Professor Horvarth in the New South Wales Supreme Court in relation to his decision to order a Schedule 1 inquiry without a complaint from the Canberra Hospital, is a private prosecution.
6. In that regard he relies on the Federal Court ruling by Griffiths J on 1 August 2019, which is Annexure C to MQAff 030321 and relevantly reads at lines 5-8: "Dr Quach, the notion of jurisdictional fact is something that comes up in public law or administrative law proceedings relating to the exercise of statutory powers. [Professor Horvarth] is not exercising any statutory powers here [without a complaint from the Canberra Hospital]. The litigation that you've commenced in this court are in private law".

The hearing before this court

1. At the outset, Dr Quach relied upon s 91 of the Evidence Act 1995 (NSW) ("Evidence Act") and s 56 of the Medical Practice Act. This was firstly to object to the contents of the 4 June 2021 affidavit of Nicholas Scott Regener, the defendant's solicitor, and then also in his general submissions.
2. Pursuant to s 91 of the Evidence Act, evidence of a 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. There is no evidence of a decision or finding of fact in either an Australian overseas proceeding that either party relied upon in this hearing.
3. In oral submissions, Dr Quach said: "the notice of motion by the defendant Professor John Horvarth is endeavouring to prevent his own prosecution under the Medical Practice Act" (T3.1-3). Dr Quach referred to s 56 of the Medical Practice Act which reads: 56 Inquiries etc not prevented by other proceedings A complaint can be referred to a Committee or the Tribunal, and dealt with by the Committee or Tribunal, even though the practitioner concerned is the subject of proposed or current criminal or civil proceedings relating to the subject-matter of the complaint.
4. Dr Quach submitted that the defendant's notice of motion was made under a subordinate rule, r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") and so s 56 of the Medical Practice Act takes precedence (T5.35-36). The Medical Practice Act (now repealed) does not govern proceedings in the Supreme Court. The Supreme Court Act 1970 (NSW) ("Supreme Court Act"), the Civil Procedure Act 1997 (NSW) ("Civil Procedure Act") and the UCPR govern proceedings in this Court.

Summary judgment

1. By notice of motion filed 4 June 2021, the defendant seeks that pursuant to UCPR 13.4 these proceedings are dismissed and that costs be payable as a gross sum forthwith.
2. The defendant relies on UCPR 13.4 and 59.10. UCPR 13.4 relevantly reads: 13.4 Frivolous and vexatious proceedings "(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - a) the proceedings are frivolous or vexatious, or b) no reasonable cause of action is disclosed, or c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1), …
3. UCPR 13.4(1) provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are: if the proceedings are frivolous or vexatious, if no reasonable cause of action is disclosed, or if the proceedings are an abuse of the process of the Court.
4. In General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125, Barwick CJ stated at 129: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense"."
5. In O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71, the Court of Appeal applied the High Court decision of Spencer v Commonwealth (2010) 241 CLR 118 ("Spencer"). Although in Spencer the High Court was concerned with s 31A(2) of the Federal Court Act 1976 (Cth), the following principles are of general application: 1. On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23] per French CJ and Gummow J). 2. The critical question can be expressed as whether there is more than a "fanciful" prospect of success (at [25] per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the Court to allow the action to go forward (at [54] per Hayne, Crennan, Kiefel and Bell JJ). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success. 3. Powers to summarily terminate proceedings must be exercised with exceptional caution (at [55] per Hayne, Crennan, Kiefel and Bell JJ; see also French CJ and Gummow J at [24]).

The defendant's submissions

1. The defendant submitted that for many reasons, the proceedings are frivolous, disclose no reasonable cause of action and are an abuse of the process of the court: UCPR 13.4(1). In summary the reasons given by the defendant are: 1. The proceedings are grossly out of time, and there is no application for an extension: cf UCPR 59.10. Nor is there evidence addressing any of the matters in UCPR 59.10(3). 2. The alleged "decision" was not made. 3. The alleged error in the decision (if it exists) would not and could not have been an error warranting relief. 4. There is no utility in the relief and there has been exorbitant delay. 22 years have passed since Professor Horvath issued a notice stating that the time and place of the hearing into Dr Quach's eligibility to be registered was "1.00pm on 15 February 1999 in the Hearing Room Medical Board Building off Punt Road Gladesville". That hearing has presumably occurred. There is no utility in now setting aside a notice fixing the time and place of the hearing. These are overwhelming discretionary factors against the grant of relief. 5. There has been unwarrantable delay. 6. "Compensatory damages" is not a remedy for excess of public power, and, in any event, any claim for damages is time-barred.
2. I shall deal with these issues in turn.

(a) The proceedings are out of time

1. UCPR 59.10 reads: "59.10 Time for commencing proceedings (1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision. (2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1). (3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following - (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest. (4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings."

The defendant's submissions

1. UCPR 59.10 applies to decisions made prior to the promulgation of Pt 59 of the UCPR: Randren House Pty Ltd v Water Administration Ministerial Corporation (No 4) [2019] NSWLEC 5 at [209]-[236]; cf Cudgegong Australia Pty Ltd v Transport for New South Wales [2018] NSWSC 929 at [75]-[93]. This is because UCPR 59.10 is a procedural provision, not a substantive provision: it does not abolish the entitlement to commence proceedings, it regulates it by permitting judicial review with leave. And, given the whole purpose of UCPR 59.10 was to encourage judicial review proceedings to be brought promptly, it would be most surprising if the intention of the drafter was that decisions made before the introduction of the rule were exempt from the leave condition: decisions made before the introduction of the rule were relatively more likely to be stale than ones made after it.
2. The "substance of the rule is that challenges to the exercise of executive power should be brought reasonably promptly, or else be accompanied by an explanation as to why that did not occur": Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783 ("Sinkovich") at [13].
3. On any view, the summons and the amended summons were not brought "reasonably promptly" after the "decision" under challenge.
4. There is no application for an extension. Nor is there any "explanation" of the kind referred to in Sinkovich.
5. UCPR 59.10(3) gives an indication of the kind of matters which an application for an extension would be expected to address ie: 1. any particular interest of the plaintiff in challenging the decision, 2. possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceeding, 3. the time at which Dr Quach became or, by exercising reasonable diligence, should have become aware of the decision, 4. any relevant public interest.
6. To the extent these factors are relevant, the following may be said. 1. Dr Quach has no significant interest in challenging the decision. In these proceedings, he seeks to challenge a decision to order an inquiry, not a decision of and following the inquiry. Even were he to succeed in challenging the decision to order the inquiry, it would not affect any decision made following the inquiry. 2. 22 years have passed. Professor Horvath was entitled not to be vexed by challenges to his functions as former President of the former Medical Board of New South Wales made in the 1990s. 3. There is no reason to think the Notice was not provided to Dr Quach on or around 20 January 1999 (noting the facsimile markings at the top of the Notice, and the fact that the Notice is in Dr Quach's possession). 4. There is no public interest in the matter. It concerns alleged procedural conduct made some 22 years ago.
7. Even if there were an application for an extension of time, the discretion to extend should not be exercised.

Dr Quach's submissions

1. Dr Quach claims he has the right to commence a private prosecution against Professor Horvarth's under the Medical Practice Act 1992, as at 19 January 1999. The Medical Practice Act , as at 19 January 1999, is not a civil jurisdiction and is not subject to any civil statute of limitation of six years. I shall return to the topic of a private prosecution later in this judgment.

Consideration

1. While Dr Quach is correct that the statute of limitations does not apply to judicial review, UCPR 59.10 does apply. Dr Quach was required to file his statement of claim within 3 months of the "decision" being made. The "decision" he speaks of was made on 19 January 1999. Whether there was actually a decision will be dealt with under the next topic (b). Dr Quach has not sought an extension of time to commence his proceedings. I accept that he says that he did not know there was no complaint made against him until February 2020. However, aside from possibly UCPR 59(3)(a), Dr Quach has not addressed the requirements set out in UCPR 59(3).

The defendant's submissions

1. The amended summons seeks to "[s]et aside the decision of Professor Horvath to order a Schedule 1 Inquiry, under the Medical Practice Act as at 19 January 1999".
2. It is apparent that Dr Quach's case is that that decision was constituted or evidenced by the Notice as reproduced earlier in this judgment.
3. However, Professor Horvath clearly did not make the alleged decision.
4. The power to order an inquiry was vested in the Medical Board of New South Wales: Schedule 1, cl 9(1) of the Medical Practice Act. Dr Quach does not challenge a decision by the Board under cl 9(1), and the Board is not a party to these proceedings.
5. The Notice evidences the exercise of a function by Professor Horvath under Schedule 1, cl 11 of the Medical Practice Act to fix the time and place of an inquiry. Even on the assumption favourable to Dr Quach that an exercise of power under cl 11 is a decision capable of challenge, Dr Quach does not challenge such a decision.
6. Dr Quach does not address this submission other than to say that he has the right to commence a private prosecution against the defendant under the Act.

Consideration

1. In s 3 of the Medical Practice Act under the heading 'Dictionary' the 'Board' is defined as the New South Wales Medical Board constituted by the Act and the 'President' is defined as the President of the Board. Schedule 1 cl 9 of the Medical Practice Act, prescribes that the Board may hold an inquiry in such cases as it considers appropriate into the eligibility of an applicant to be registered as a medical practitioner. It is the task of the Registrar to fix a time and place for the holding of the inquiry and the applicant is to be given at least 14 days notice in writing of the time and place of the inquiry. That was done and the notice was sent within the stipulated time frame.
2. It was the NSW Medical Board that considered it appropriate to hold an inquiry into the eligibility of Dr Quach to be registered as a medical practitioner. The fact that the notice was signed by the President of the New South Wales Medical Board is of no consequence. It appears that the Registrar may well have been able to sign the notice. Professor Horvarth, the President did not make the decision in his personal capacity to hold the inquiry. Hence Professor Horvarth is not the correct defendant.

(c) The alleged error, if made, would not have warranted relief

The defendant's submissions

1. As best can be understood from the amended summons, the alleged error is that there was no "complaint" in existence. Let it be assumed favourably to Dr Quach that he can establish that there was no "complaint" in existence. That could not give rise to error by Professor Horvath.
2. Nothing in the Medical Practice Act conditions the validity of the exercise of a function under Schedule 1, cl 11 of the Medical Practice Act on the existence of a "complaint".
3. Nor is there any basis for a contention that the non-existence of a complaint could yield some non-jurisdictional error of law on the face of the record. The existence of a complaint would seem to be a matter of fact, not law. And there is no evidence or suggestion that the "record" (if there was one) asserted that there was a "complaint". The Notice does not assert that there was a "complaint".
4. Nor, for that matter, does anything in the Medical Practice Act condition the validity of the exercise of the Board's power under Schedule 1, cl 9 of the Medical Practice Act on the existence of a "complaint". The only express statutory precondition to the exercise of the Board's power under cl 9(1) is that the Board "considers [it] appropriate" to hold an inquiry. The breadth of that language cuts overwhelmingly against any contention that it is a condition of the validity of an exercise of power under cl 9(1) that there be some complaint in existence.

Dr Quach's submissions

1. In answer, Dr Quach submitted that the notice was issued on 19 January 1999, some 22 years ago and was signed by Professor Horvarth, who at that time was the President of the Medical Board. In February 2020 Dr Quach says he discovered that no complaint had been made to the Medical Board and therefore he submitted that there was no authority for the defendant to issue the notice.
2. Dr Quach relied upon Gedeon v NSW Crimes Commission [2008] HCA 43 at [43] ("Gedeon"), as authority for the principle that a 'jurisdictional fact' is a criterion the satisfaction of which enlivens the exercise of statutory power or discretion. In the absence of such a jurisdictional fact, the exercise of a power or discretion will have been made without the necessary statutory authority and will be invalid. Dr Quach submitted that accordingly the Schedule 1 inquiry ordered by Professor Horvarth is invalid as there was no complaint (jurisdictional fact) upon which the exercise of power (ordering the inquiry) was enlivened.
3. Dr Quach also relied on Australian Vaccination Network Inc v Health Care Complaints Commission [2012] NSWSC 110 ("Australian Vaccination Network"). It refers to Gedeon at [42]. The short facts are set out in the judgment by Adamson J. They are: "[2] In 2009, two complaints were made against the plaintiff, and its President, Ms Dorey, to the first defendant ( the HCCC ). The first complaint, made by Mr McLeod ( the McLeod complaint ), was that the plaintiff engaged in misleading or deceptive conduct in order to dissuade people from being, or having their children, vaccinated. The second complaint, made by Mr and Mrs McCaffery ( the McCaffery complaint ) against the plaintiff and Ms Dorey, is said to raise similar issues. The second complaint is not in evidence although it is summarised in the HCCC report of the investigation. The plaintiff, through its counsel, accepted that there was no material difference between these two complaints. [3] The HCCC, after assessing the two complaints, decided to investigate them in so far as they concerned the plaintiff, but not Ms Dorey. The investigation involved a review of the content of the plaintiff's website. After it had completed its investigation, the HCCC released its final report on 7 July 2010 ( the Investigation Report ) in which it made a recommendation that the plaintiff publish a disclaimer on its website ( the Recommendation ). When the plaintiff did not do so, the HCCC issued a public warning ( the Public Warning ) in respect of the plaintiff on 26 July 2010 pursuant to s 94A of the Health Care Complaints Act 1993 ( the Act ) which said: "The AVN's failure to include a notice on its website of the nature recommended by the Commission may result in members of the public making improperly informed decisions about whether or not to vaccinate, and therefore poses a risk to public health and safety." [4] The Investigation Report, the Recommendation and the Public Warning were then relied upon by the Minister for Gaming and Racing (the minister administering the Charitable Fund Raising Act 1991) to revoke the plaintiff's fundraising capacity. [5] In these proceedings the plaintiff seeks, in substance, a declaration that the HCCC's investigation, the Investigation Report, the Recommendation and the Public Warning were ultra vires because neither of the complaints was a complaint within the meaning of the Act. It also seeks an order in the nature of certiorari quashing the HCCC's decision or determination to issue the Public Warning. The Minister for Gaming and Racing was named as the second defendant but on 5 July 2011 the plaintiff discontinued proceedings against him. [6] The HCCC contends that the complaints were complaints within either s 7(1)(b) or s 7(2) of the Act and that accordingly it had power to investigate them, make recommendations and, when the recommendation was not acted upon, issue a public warning. In the alternative, the HCCC submits that even if I am satisfied that these matters were ultra vires , the plaintiff is not entitled to certiorari."
4. Part 2 of the Act deals with complaints. Section 7 in Division 1 of the Health Care Complaints Act 1993 (NSW) ("Health Care Complaints Act") (this act superseded the Medical Practice Act) provides for the right to complain in the following terms: "7 What can a complaint be made about? (1) A complaint may be made under this Act concerning: (a) the professional conduct of a health practitioner (including any alleged breach by the health practitioner of Division 3 of Part 2A of the Public Health Act 1991 or of a code of conduct prescribed under section 10AM of that Act), or (b) a health service which affects the clinical management or care of an individual client. (2) A complaint may be made against a health service provider. (3) A complaint may be made against a health service provider even though, at the time the complaint is made, the health service provider is not qualified or entitled to provide the health service concerned."
5. At [42] Adamson J stated: "[42] Both parties accepted, properly in my view, that a complaint "concerning a health service which affects the clinical management or care of an individual client" was a jurisdictional fact and that it therefore identifies that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion: Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 148, per Gleeson CJ, Gummow, Kirby and Hayne JJ). If this criterion is not met, then the decision or action purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision-maker: Gedeon v NSW Crime Commission (2008) 236 CLR 120 at 139)."
6. At [52] Her Honour stated: "It was common ground, and I accept, both that the existence of a complaint that fell within s 7(1)(b) was a jurisdictional fact and that I must inquire into the objective existence of that fact."
7. Her Honour declared that neither complaint was a complaint under the Health Care Complaints Act, the HCCC's investigation into these complaints, the recommendation contained in the Investigation Report and the Public Warning issued by the HCCC in respect of the plaintiff were not within the jurisdiction of the HCCC. The application for judicial review failed.
8. In relation to the question of whether there was an error warranting relief, Dr Quach also submitted that as he was working as an intern in the Australian Capital Territory ("ACT"), the NSW Medical Board had no jurisdiction to hold an inquiry.

Consideration

1. Dr Quach's refers to the expression 'jurisdictional fact', to describe the function that a complaint has in enlivening Professor Horvath's power to order the Schedule 1 inquiry. In Australian Vaccination Network there was found to be a jurisdictional fact, namely the existence of a complaint that fell within s 7(1)(b).
2. There is an important statutory difference in the Health Care Complaints Act and the Medical Practice Act (repealed), namely s 7 of the Health Care Complaints Act. Section 7 of the Health Care Complaints Act requires a complaint to be made. There was no such requirement for a complaint to be made in the Medical Practice Act. The existence of a complaint is not a jurisdictional fact for the purpose of exercising the power to order an inquiry.
3. On the question of whether the NSW Medical Board had jurisdiction to order an inquiry, Dr Quach made a submission that having obtained recognised medical qualifications under s 4(2)(a) of the Medical Practice Act, he was entitled to be registered as a medical practitioner under s 5 of the Medical Practice Act.
4. Dr Quach was seeking to be registered under a New South Wales Act which regulates the registration of medical practitioners practicing in New South Wales. The NSW Medical Board specifically has the power to hold an inquiry in such cases it considers appropriate into the eligibility of an applicant to be registered as a medical practitioner in New South Wales: Schedule 1 cl 9 of the Medical Practice Act. Therefore the NSW Medical Board did have jurisdiction to order the inquiry.

The defendant's submissions

1. Certiorari should not issue if it would serve no useful purpose: eg R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400 ("Ozone"); J J Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 at [83].
2. The Notice fixed the time and place of a hearing in 1999. Either the meeting occurred at that time and place or it did not. If the meeting occurred at that time and place, there is no utility now in setting aside the Notice which fixed that time and place: the facts have occurred. If the meeting did not occur at that time and place, there is even less potential utility in setting aside the Notice.
3. There is no utility in granting certiorari in respect of the Notice.
4. The relief sought could not give rise to foreseeable consequences.

Consideration

1. The decision to order an inquiry was made some 22 years ago. It was to fix a place and time for a hearing that may or may not have taken place at that time. I do not see any useful purpose for setting aside the decision to fix a time and place for a hearing over 20 years ago. As counsel for the defendant rightly asserts, the facts have already occurred and there is no utility in issuing of certiorari in relation to this decision.

The defendant's submissions

1. Certiorari should not issued if there has been unwarrantable delay by the applicant: eg Ozone at 400.
2. Historically, certiorari was available only if applied for within six months of the date of decision, with no power to extend time: Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 at [43] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ) (Callinan J agreeing at [80]). While there is no longer a strict time limit, it remains the case that an applicant for certiorari should act promptly.
3. There has been unwarrantable delay by Dr Quach. The delay is 22 years. There is no explanation for the delay. There is no public interest in revisiting events occurring in the 1990s.

Consideration

1. This topic has already been addressed under submission (a). There has been an extraordinary delay. I am reminded of what McHugh J said regarding delay in Brisbane South Regional Health Authority v Taylor [1996] HCA 25;186 CLR 541 at [551]: "As the United States Supreme Court pointed out in Barker v Wingo (22), "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose… The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose."
2. While there is no evidence of actual prejudice there is the presumed prejudice referred to in Barker v Wingo 407 US 514 (1972) (at [22]) caused by a delay of 22 years.

(f) There is no basis for a claim for "compensatory damages"

The defendant's submissions

1. Dr Quach claims "compensatory damages".
2. He does not allege a tort, but presumably his case is that there was an invalid decision and in consequence of that decision he suffered harm.
3. This claim proceeds from a fundamentally unsound proposition.
4. There is no general cause of action entitling recovery of compensation for harm suffered as a result of excess of public power: Kruger v The Commonwealth of Australia (1997) 190 CLR 1, 46-7 (Brennan CJ), 93 (Toohey J), 124-126 (Gaudron J), 146-148 Gummow J); Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37, 64, 69 (Latham CJ) Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 562; McClintock v The Commonwealth (1947) 75 CLR 1, 19 (Latham CJ); Kable v State of New South Wales (2012) 168 FLR 1 at [100]-[104] (Basten JA).
5. In any event, any cause of action in tort would be well and truly time-barred under s 14(1) of the Limitation Act 1969 (NSW).
6. Further, Professor Horvath has immunity under s 189(f) of the Medical Practice Act in respect of his conduct as President provided "the matter or thing was done or omitted to be done in good faith for the purposes of executing" the Medical Practice Act. There is (and could be) no contention that that immunity has been lost.

Consideration

1. There is no general cause of action entitling recovery of compensation for harm suffered as a result of excess of public power. In any event Dr Quach has not established that there was an excess of public power, and Professor Horvath has immunity under the Medical Practice Act.

Particulars

1. That leaves Dr Quach's submissions that there has been non-compliance by Professor Horvarth with the Court's order to provide particulars and as a result the defendant's notice of motion should be dismissed.

Dr Quach's submissions

1. Dr Quach submitted that he complied with Order 2 of the Court on 10 June 2021 to request particulars for the Notice of Motion dated 4 June 2021. However Professor Horvarth has not complied with Order 3 to provide particulars. As the Notice of Motion is without particulars and without merit and should be dismissed with costs.

The defendant's submissions

1. The defendant submitted that he served written submissions that outlined his case. In judicial review the information provided is in substance the same as particulars.

Consideration

1. While I accept the Registrar made orders for the defendant to supply particulars, this order is not usually made in judicial reviews. I accept the defendant served written submissions on Dr Quach which appraised of the case he had to meet. By the supply of submissions, the defendant has fulfilled this requirement.

Private criminal prosecution

1. Dr Quach submitted that he has the right to commence a private prosecution against the defendant under the Medical Practice Act. As previously stated, this Act has been repealed and it no longer has any statutory force. In answer, Dr Quach may say that he has a right to commence a private prosecution under the Health Care Complaints Act. He does not.

The Criminal Procedure Act

1. Section 14 of the Criminal Procedure Act 1986 (NSW) ("Criminal Procedure Act") authorises that prosecution may be instituted by any person unless the right to institute the prosecution is confined by statute. Therefore, save for where the institution of proceedings is confined by statement, an application to a registrar of the Local Court to issue court attendance notices against a person for an offence can be made by a person other than a police officer or public officer.
2. Section 49(1) of the Criminal Procedure Act reads: 49 Commencement of private prosecutions (1) If a person other than a police officer or public officer is authorised under section 14 of this Act or under any other law to commence committal proceedings against a person for an offence, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division.
3. While it is possible to launch a private criminal prosecution, there has to be an alleged criminal offence. Here there is none.

Result

1. The proceedings are grossly out of time, and there is no application for an extension of time to file the summons: cf UCPR 59.10. Nor is there evidence addressing any of the matters in UCPR 59.10(3).
2. Further, the alleged "decision" was not made. The alleged error in the decision (if it exists) would not and could not have been an error warranting relief. 22 years have passed since Professor Horvath issued a notice stating the time and place of the hearing into Dr Quach's eligibility to be registered. There is no utility in now setting aside a notice fixing the time and place of the hearing. These are overwhelming discretionary factors against the grant of relief.
3. The defendant has set out the case that Dr Quach has had to meet. Dr Quach does not have the right to commence private criminal prosecution under the Medical Practice Act (now repealed) nor the Health Care Complaints Act.
4. For these reasons, it is my view that the matters raised in Dr Quach's amended summons are hopeless. In the exercise of my discretion, I decline to grant Dr Quach a further opportunity to replead his summons as the deficiencies in his summons cannot be overcome. The amended summons filed 27 May 2021 is dismissed.

Costs

1. The defendant has indicated he wants to seek that costs be awarded as a gross sum payable forthwith.
2. The timetable for submissions on costs is as follows: 1. I order that the defendant file and serve any affidavits and submissions on costs within 14 days (15 November 2021). 2. The plaintiff to file and serve any affidavits and submissions on costs within 28 days (29 November 2021). 3. To minimise costs, I will deal with the issue of costs on the papers in chambers.

The Court orders: 1. The amended summons filed 27 May 2021 is dismissed. 2. The timetable for submissions on costs is as follows: 1. I order that the defendant file and serve any affidavits and submissions on costs within 14 days (15 November 2021). 2. The plaintiff to file and serve any affidavits and submissions on costs within 28 days (29 November 2021). 3. To minimise costs, I will deal with the issue of costs on the papers in chambers.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 November 2021