Quach v Horvarth

Supreme Court of NSW|2022-03-09|Before: Campbell J, Harrison J

Judgment

The currently pending proceeding in this Court is an appeal instituted by Notice of Motion in accordance with Rule 49.8 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), filed on 8 November 2021, from the decision of Associate Justice Harrison given on 1 November 2021 summarily dismissing proceedings carried on and maintained by an Amended Summons filed on 27 May 2021: Quach v Horvarth [2021] NSWSC 1401. By the Amended Summons, the plaintiff claimed compensatory damages, interest and costs related to the defendant's notification of an inquiry under the provisions of the Medical Practice Act 1992 (NSW) (Repealed) ("the Repealed Act") on 19 January 1999. The defendant signed the notice (plaintiff's affidavit 4 March 2022, Annexure "J"; defendant's court book ("DCB") p. 90) in his capacity as the then President of the NSW Medical Board ("Medical Board"): s 130(3), Schedule 3 cl 1 of the Repealed Act.
The plaintiff's right of appeal is conferred by Rule 49.4 UCPR. It is not a case where an appeal lies to the Court of Appeal: Part 60, Rule 17 Supreme Court Rules 1970 (NSW) ("SCR").

Procedural history

The plaintiff is a former medical practitioner against whom the New South Wales Civil and Administrative Tribunal (NCAT) made findings of unsatisfactory professional conduct and professional misconduct on 5 February 2015: Health Care Complaints Commission v Quach [2015] NSWCATOD 2. On 21 April 2015, NCAT cancelled his registration as a medical practitioner: Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32.

Vexatious proceedings order

This history is not of merely background or procedural significance. By its written submissions, the Medical Council of NSW, which appears to resist a subpoena to produce documents, has drawn my attention to orders made under the Vexatious Proceedings Act 2008 (NSW) in Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267, including the following: "(5) Pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW), [the plaintiff] is prohibited from instituting any further proceedings in New South Wales relating to the subject matter of proceedings 1420086 and 1420065 in the New South Wales Civil and Administrative Tribunal (NCAT) (entitled "Health Care Complaints Commission v Quach") or relating to proceedings 2015/158685, 2015/67618 and 2015/48269 in the New South Wales Court of Appeal." Meagher JA's orders dismissing paragraph 3 of the Notice of Motion filed by Mr Quach on 21 October 2015 were made in proceedings 2015/15685.
As the Medical Council point out, the proceedings before Harrison AsJ (file no. 2021/123675) were commenced without leave first granted under s 16 Vexatious Proceedings Act, as has the current appeal which itself is a proceeding to which that Act applies: s 4(e); s 13(1)(a). For reasons which are not fully explained, but which may be connected with the consideration that the defendant, although the President for the time being of the Medical Board in 1999, was not a party to the proceedings when the order was made, nor was he a necessary party then, the Court of Appeal's order was not drawn to Harrison AsJ's attention. Notwithstanding this, there can be no doubt that these current proceedings are "further proceedings in New South Wales … relating to proceedings 2015/158685", at the very least, and are therefore caught by order 5 made by the Court of Appeal on 20 October 2017.
As I have said, the point was raised and argued in the Medical Council's written submissions (DCB, tab 5, pp. 40 - 46, [10]-[13]) and the Medical Council has in terms applied for an order that the proceedings be stayed as one of the bases on which resists the subpoena. That the defendant has not taken the same point is of no moment. The effect of the institution of proceedings in contravention of a vexatious proceedings order does not depend upon the matter being pleaded by the person against whom the proceedings are commenced, or for that matter the exercise of a judicial discretion. The legal effect of a contravention of the order is fixed by the provisions of s 13 Vexatious Proceedings Act which operates of its own force. By force of s 13(1)(a) proceedings of the kind to which the order relates may not be instituted without the leave of the Court first obtained under s 16 of the Act. Subsections 13(2) to (5) should be set out in full: (2) If proceedings are instituted in contravention of subsection (1), the proceedings are stayed until they are dismissed (or taken to be dismissed) under this section. (3) Any proceedings that are stayed by subsection (2) are taken to be dismissed by the court or tribunal in which they were instituted on the expiry of the period of 28 days after the proceedings were first instituted, unless the proceedings are sooner dismissed under subsection (4). (4) Without limiting subsection (2) or (3), the authorised court, or the court or tribunal in which the proceedings are instituted, may make: (a) an order declaring that proceedings are proceedings to which subsections (2) and (3) apply, and (b) an order dismissing the proceedings before the expiry of the period referred to in subsection (3), and (c) any other order in relation to the proceedings that it considers appropriate, including an order for costs. (5) An authorised court, or the court or tribunal in which the proceedings are instituted, may make an order under subsection (4) of its own motion or on the application of a person referred to in section 8 (4). As can be seen, the contravening proceedings are stayed not by court order but by force of law under s 13(2) and under s 13(3) the contravening proceedings are taken to be dismissed by the Court on the expiry of the period of 28 days after the proceedings were first instituted. The practical effect of these provisions in the present matter is that upon filing his Notice of Motion by which the plaintiff instituted the appeal, those proceedings, as defined by s 4(e) Vexatious Proceedings Act, were stayed. They were taken to have been dismissed therefore by force of s 13(3) no later than 7 December 2021. As a matter of law, there is no longer any extant appeal from Harrison AsJ's summary dismissal of the proceedings on the amended summons, which themselves suffered the same procedurally fatal flaw as the appeal.
It is not open to me to ignore the Court of Appeal's vexatious proceedings order, nor do I have the power to obviate or avoid its legal effect. Of its own force, the legislation scuttles the contravening proceedings and they cannot be salvaged or re-surfaced from the deep of legal ineffectiveness by mere judicial order.
I raised the question of the effect of the vexatious proceedings order with the plaintiff during his oral submissions in reply as he had not previously addressed it and I must say he did not seem to answer the question directly. I think it necessary to set out the whole of the parts of my exchange with the plaintiff about this topic commencing at transcript p. 22, line 50: "Now, so far as that is concerned, I guess an obvious point by way of example which you may want to address me on is the Court of Appeal's order prohibiting you from re‑ventilating matters the subject of the previous proceedings. But it's up to you to raise with me the things that you think you're entitled to raise with me in reply." With respect, the plaintiff seemed to go off on a tangent and I attempted to bring him back to the topic at transcript 26.38: "HIS HONOUR: All right, okay; thank you for that. I think that was a bit of a rehearsal of what you already told me, but anyway. Could I just ask you this question because I don't think you've explained to me why your pending appeal, let alone the proceedings which led to the decision of Associate Justice Harrison, why they don't offend the order made by the Court of Appeal under the Vexatious Proceedings Act 2008. PLAINTIFF: Because Justice Harrison has ruled that there is no jurisdictional fact for ‑ on that basis there's no jurisdictional fact to establish to be under any New South Wales law, legislation, or common law." It is perhaps clear from this that the plaintiff did not fully comprehend the import of the question. However, as I have sought to explain the point taken by the Medical Council was, in reality, unanswerable. Nothing the plaintiff could have said would have made any difference to the fundamental flaw in his proceedings.
To be clear, it was the Notice of Inquiry of 19 January 1999, signed by the defendant which instituted the Inquiry which led to conditions being imposed upon the plaintiff's registration as a medical practitioner which he sought to challenge by way of paragraph 3 of the Notice of Motion filed on 21 October 2015 which was dismissed by Meagher JA. Accordingly, the giving of that notice under the hand of the defendant and the plaintiff's proceedings based on that act are further proceedings in New South Wales relating to proceedings 2015/158685 and by force of s 13(3) Vexatious Proceedings Act are taken to have been dismissed.
By force of subsections 13(4) and (5), the Court of its own motion may make an order declaring that the proceedings are proceedings to which subsections (2) and (3) of s 13 apply and I propose to make such an order. Lest I am wrong in my conclusions, and as they have been fully argued, I will provide short reasons explaining how I would have disposed of the various applications listed for determination before me.

Applications listed for determination

A number of applications have been referred for determination: 1. Notice of Motion filed on behalf of the Medical Council of New South Wales on 9 June 2021 as a third party on whom a subpoena to produce documents filed on 24 May 2021 has been served by the plaintiff; 2. Related to (1), paragraph 1 of the plaintiff's Notice of Motion filed on 16 February 2022 seeking an order that the subpoena of 24 May 2021 be complied with; 3. The defendant's Notice of Motion filed on 14 December 2021 seeking orders that a Notice to Produce for inspection issued by the plaintiff on 17 November 2021 and a Notice to Produce to the Court issued by the plaintiff on 7 December 2021 be set aside; 4. The plaintiff's Notice of Motion filed on 7 February 2022 seeking an order of the lump sum costs order made by Harrison AsJ in Quach v Horvath (No 2) [2022] NSWSC 55 be stayed pending disposition of the plaintiff's appeal. There is no dispute that this order should otherwise have been made; 5. Paragraph 2 in the plaintiff's Notice of Motion filed on 16 February 2022, in terms seeking a vacation of the timetable ordered on 16 November 2021 for preparation of the appeal but in substance seeking an adjournment of the hearing date of 28 April 2022.

The first and second applications

In the subpoena to produce documents issued at the request of the plaintiff on 24 May 2021 the plaintiff purported to require the Medical Council to produce documents in the following terms: "The documents or things you must produce are as follows: 1. The file of Dr Michael Van Tan Quach registration numbers, MPO 35593 and MED 0001183649." There followed a very extensive definition of "documents", upon which nothing turns as I see it for present purposes.
In support of its application to set aside the subpoena, the Medical Council read the affidavits of Bridget Andersons sworn 9 June 2021 and of Bahar Turkmener sworn 2 March 2022. Both Ms Andersons and Ms Turkmener are solicitors in the service of the Health Professional Council's Authority ("HPCA"). Ms Andersons, when she affirmed her affidavit, was the Acting Principal Legal Officer and the solicitor with the carriage of the proceedings for the Medical Council. Ms Turkmener is a senior legal officer working with Ms Andersons.
The plaintiff objected to the reading of each of these affidavits on what seemed to be ill-conceived technical grounds relating to the solicitors' authority to act for the Medical Council, which I overruled. It is unnecessary for me to go into the reasons for those decisions. Short reasons were given during the proceedings. Ms Anderson's affidavit, which was not in substance challenged attached a letter of 2 June 2021 to the plaintiff objecting to production on the basis that the documents did not serve a legitimate forensic purpose because the records sought extended far beyond the subject matter of the proceedings, were oppressive because of the great volume of documents potentially caught and required the production of "protected reports" contrary to s 176F Health Practitioner Regulation National Law (NSW) ("National Law") or would be contrary to the provisions of s 99A(2A) Health Care Complaints Act 1993 (NSW).
The Medical Council invited the plaintiff to narrow the scope of the subpoena so it required only non-protected records relating to the inquiry convened by the Medical Board pursuant to schedule 1 of the Repealed Act held on 15 February 1999 (see s 22 Repealed Act) excluding protected reports, reports within s 99A(2A) and records created after 4 March 1999.
In her affidavit Ms Turkmener gave evidence that the Medical Council's documents totalled about 10,000 pages, two months of clerical time would be taken to search for and print out the electronic material and copy the entire file which covers a period of 23 years from 1999. She also exhibited the letter of 2 June 2021 and her letter of 16 June 2021 following up Ms Andersons' earlier letter to which the plaintiff had not replied. In her written submissions, supplemented orally at the hearing, Ms J. Gatland of Counsel pointed out that the Medical Council's application had been stood-over pending the determination of the summary dismissal application and that the plaintiff had apparently sought to revive it by his motion of 16 February 2022. She argued that even had the plaintiff obtained leave to institute these proceedings, the subpoena was so broad as to lack a legitimate forensic purpose and is otherwise oppressive. Counsel relied upon a number of the leading authorities in this area of discourse, which it is unnecessary to refer to in detail. She laid emphasis on those categories of documents, the production of which may not be compelled under the legislation referred to.
Ms Gatland also argued that as the proceedings were dismissed summarily and the institution of an appeal of itself did not affect the validity of the orders made by Harrison AsJ "there are no proceedings on foot to which the subpoena" relates. The subpoena is accordingly otiose. In the alternative she argued that production should be limited to that category of documents previously offered on behalf of the Medical Council.
The plaintiff seemed to argue that the whole course of conduct between him and the various regulatory authorities authorised from time to time to maintain professional standards in the public interest was relevant to proof of the case he sought to make in his Amended Summons and Notice of Appeal.
The plaintiff's affidavit of 4 March 2022 read without objection is a combination of submissions and evidence. It annexes certain evidence including, perhaps importantly, a copy of a letter dated 27 February 1997 from the Senior Medical Executive of Canberra Hospital where the plaintiff was engaged as an intern, from which position he "abruptly resigned". It is his case against the defendant that an inquiry under s 22 of the repealed legislation, schedule 1 could not be convened unless there had been a "complaint". He argued before Harrison AsJ and as I understand it, maintains on appeal, that the existence of a complaint is a jurisdictional fact necessary to the legality of the former Medical Board undertaking an inquiry. His argument is that the letter of 28 February 1997 (affidavit, annexure K) cannot in any way be understood as a complaint and from his inquiries there is no other document issued by the Canberra Hospital which could constitute a complaint.

Determination

Reduced to its most basic terms, the plaintiff's case against the defendant is that in signing the notice for an inquiry under s 22 and schedule 1 of the Repealed Act, the defendant exceeded his statutory authority in a number of ways and is therefore liable to him in damages for an unspecified cause of action. The central tenet of the plaintiff's argument is that an inquiry under Schedule 1, Clause 9 of the repealed Act cannot be held in absence of a complaint about the practitioner.
Harrison AsJ was satisfied that the defendant had established the high bar for summary judgment on six grounds, which it is unnecessary to detail for present purposes. It is apparent from the form of his Notice of Motion of 8 November 2021 purporting to institute his appeal that the plaintiff relies upon a single ground of appeal challenging Harrison AsJ's rejection of the plaintiff's central tenet (Quach v Horvarth [2021] NSWSC 1401 at [59]). Her Honour ruled that as a matter of legal interpretation "the existence of a complaint is not a jurisdictional fact for the purpose of exercising the power to order an inquiry". Her Honour held under the repealed Act, the Medical Board had the power to hold an inquiry in such cases as it considered appropriate into the eligibility of an applicant to be registered as a medical practitioner in New South Wales.
It is very arguable that even if the plaintiff establishes the legal error asserted in his single ground of appeal that some or all of the other matters relied upon by Harrison AsJ would be sufficient to justify her Honour's decision including ground (f) that "there is no general cause of action entitling recovery of compensation for the harm suffered as a result of excess of public power": Kruger v Commonwealth of Australia (1997) 190 CLR 1; [1997] HCA 27; Harrison AsJ at [75].
Given the narrowness of the focus of the plaintiff's asserted cause of action and the even narrower ground of his purported appeal, there could be no serious question that the challenge to the breadth of the subpoena should be upheld. Clearly it should be set aside as oppressive or an abuse of process. Its breadth and the number of documents required are excessively burdensome and not relevant to the appeal: Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 926 (Waddell J).
I accept that as for the purpose of the appeal, an order for summary dismissal is an interlocutory, rather than final, order and additional evidence is readily admissible on appeal having regard to the provisions of s 75A(7) Supreme Court Act 1970 (NSW): Wickstead v Browne (1992) 30 NSWLR 1 at 11 (Handley and Cripps JJA). But the breadth of the subpoena directed to the Medical Council which is not a party to the proceedings is an obvious fishing expedition of the most extensive kind.
Nor does the consideration that the Medical Council would have been prepared to produce a much more limited class of document make any difference. Leaving aside the limited scope for the Court to apply a "blue pencil test" to severance of aspects of a subpoena, not applicable here, it is not the function of the Court to redraft a party's subpoena. It either survives a challenge or it fails. The plaintiff's subpoena fails the challenge and would have been set aside for these reasons.
I would also have accepted the argument that a subpoena issued in May 2021 merged in the order for summary dismissal. I am not satisfied that the subpoena in those circumstances would be revived by the terms of the Notice of Motion of 16 February 2022, which merely seeks an order that it be complied with.

The third application

The Notice to Produce for Inspection of 17 November 2021 and the Notice to Produce to the Court of 7 December 2021 are in similar terms. Each though issued under different rules requires production of the following, excluding the very extensive definition of "documents" at the end of paragraph 2: 1. The letter of appointment for Schedule 1, which attached letter of complaint from Dr Davies of the Canberra Hospital of 1998; 2. Any other related record of Dr Michael Van Thanh Quach and/or Dr Van Thanh Quach (previously known), including any record relating to MPO 335593 and MED 00183649.
In written submissions, the defendant referred to Rule 21.10 UCPR and Rule 34.1 UCPR applying to a Notice to Produce for Inspection by parties and a Notice to Produce to the Court respectively. Emphasis is laid on paragraph 21.10(1)(b) of the former rule and the words "specific document or thing that is clearly identified in the notice and is relevant to a fact in issue". And in the latter to the concluding words of the rule "any specified document or thing". It is submitted by the defendant that the paragraphs to each Notice do not adequately specify the documents and the documents called for are not relevant to a fact in issue.
For the same reasons given in respect of Applications 1 and 2, I would have upheld this argument in respect of paragraph 2 of each Notice. However, it seems to me that paragraph 1 of each Notice is sufficiently specific and sufficiently relevant in as much as the documents in paragraph 1 could rationally affect the assessment of the probability of the existence of a fact in issue, at least in relation to the case which the plaintiff propounds.
It is tolerably clearly that the language of paragraph 1 refers to Annexures J and K of the plaintiff's affidavit of 4 March 2022 (DCB, tab 6, pp. 90 - 91). On the other hand, paragraph 2 in each Notice is oppressive for the reasons given for setting aside the subpoena directed to the Medical Council. Here, the Court is entitled to sever paragraph 2 from the Notices.
Given s 75A(7) of the Supreme Court Act as explained by Wickstead v Browne and as the documents were apparently not available at the hearing before Harrison AsJ, Annexures J and K may well have been admissible on any hearing of the purported appeal.
For clarity, given the conclusion I have come to in relation to the vexatious proceedings order, it will not be necessary for the documents to be produced if they in fact remain within the power, possession, custody or control of the defendant now.

The fourth application

As I indicated at the hearing before me, given the defendant's attitude I would have stayed the lump sum costs order made by Harrison AsJ on 4 February 2022 pending the disposition of the plaintiff's purported appeal. However, that stay is no longer appropriate or necessary given the order I am required to make.

The fifth application

As I have said, this is in substance an application for the adjournment of the appeal and the vacation of the hearing date of 28 April 2022. The only basis for the adjournment advanced by the plaintiff in his written submissions (DCB tab 17, p. 157) is that he has "a hearing before the Federal Court of Australia on 29 April 2022 and would not be able to prepare for the hearing on 28 April 2022 in the New South Wales Supreme Court".
From the written submissions of the defendant (DCB tab 19, p. 163), the "hearing in the Federal Court" is a taxation of costs before an Assistant Registrar. The hearing of the purported appeal was listed for 28 April 2022 on 16 November 2021. The Federal Court taxation matter was fixed only on 1 February 2022. I accept that there is no evidence that the plaintiff took or has taken any step to move the date for the taxation of costs if he felt unable to represent himself in two matters on consecutive days. Given there remain six weeks until the hearing of the appeal, I would have thought that even for a lay person there is ample time for the preparation of both matters. I accept the argument that the first and prior listing should prevail so far as there is competition between them, which I doubt.
Were I not of the view that the appeal contravenes the vexatious proceedings order made by the Court of Appeal, I would have refused the adjournment. Obviously, an adjustment of the timetable fixed on 16 November 2021 would have been necessary. But there is ample time for that adjustment to be accommodated by the parties.

Disposition

For the reasons I have given, order: 1. Under s 13(4) Vexatious Proceedings Act 2008 (NSW), declare that the plaintiff's appeal instituted by Notice of Motion filed on 8 November 2021 is a proceeding to which subsections (2) and (3) of s 13 of the said Act apply and accordingly the appeal is taken to have been dismissed by the Court upon the expiration of the period of 28 days after 8 November 2021; 2. For clarity, vacate the hearing date of 28 April 2022; 3. The plaintiff is to pay the defendant's costs of the appeal; 4. The plaintiff is to pay the Medical Council's costs of his Notice of Motion filed on 16 February 2022; 5. Liberty to apply for a special costs order within 14 days of today; 6. Each of the Notices of Motion referred to in [10] of this judgment are otherwise dismissed.

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: 14 March 2022

Medical Practice Act 1992(NSW)

Health Practitioner Regulation Amendment Act 2010(NSW)

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