Quach v Marks

1. The Attorney General be granted leave to appear as an intervener in these proceedings. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ABRAHAM J: 1 In these proceedings, the applicant seeks relief in respect of decisions of the New South Wales Civil and Administrative Tribunal (NCAT) in Health Care Complaints Commission v Quach [2015] NSWCATOD 2 and Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32. 2 The respondent, the Honourable Francis Marks, is a principal member of NCAT and was a presiding member in the decisions about which the applicant complains. 3 The applicant claims that: (1) Frank Marks made findings under the Health Insurance Act 1973 (Cth) without valid statutory authority, referring to Gedeon v Commissioner of NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120 (Gedeon), that commenced on 10 September 2014, and in the Health Care Complaints Communication v Quach [2015] NSWCATOD 2 and [2015] NSWCATOD 32; and (2) Frank Marks is guilty of dishonesty by ordering costs against the applicant in Health Care Complaints Communication v Quach [2015] NSWCATOD 2 and [2015] NSWCATOD 32, when he knew that he didn't have the ability to order costs. 4 The respondent filed a submitting appearance in these proceedings on 1 December 2020. 5 The Attorney General for the State of New South Wales (the Attorney General) seeks an order that he be granted leave to intervene in this proceeding pursuant to r 9.12 of the Federal Court Rules 2011 (Cth). In support of that application, the Attorney General relies on an affidavit of Kyle Hudson, an employed solicitor with carriage of the matter, affirmed on 22 February 2021. The application is made on the basis that the Attorney General is the Minister with responsibility for the administration of the Civil and Administrative Tribunal Act 2013 (NSW), which governs the NCAT. 6 I note the applicant has already unsuccessfully challenged the validity of the respondent's appointment as a member of NCAT, albeit on a different basis: Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10. The Attorney General was granted leave to intervene in that proceeding. 7 The applicant opposes the grant of leave. Initially, the applicant sought to cross-examine the Attorney General. That application was refused. The applicant then sought leave to cross-examine Mr Hudson on a "jurisdictional fact", which I take to be a reference to his submission about Gedeon v Commissioner of NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120 (Gedeon). As Kenny J observed in Wu v Avin Operations Proprietary Limited (No 3) [2006] FCA 132 at 18, although: the Court has a discretion to omit or refuse an application made in an interlocutory proceeding to cross-examine a deponent on an affidavit that he or she has made. Although the discretion is permitted, such cross-examination is exercised cautiously and, as Nicholson J in Scanlon v American Cigarette Co (Overseas) Pty Ltd (No 1) [1987] VR 261 at 272 said, "normally" and "somewhat sparingly". 8 That proposition has been repeatedly cited with approval. In my view, the applicant's reliance on the topic of "jurisdictional fact" on this application is misguided. Mr Hudson's affidavit is clear and limited to matters relevant to this application. Contrary to the applicant's contention, there is no jurisdictional fact of the nature he contends that the intervener must establish before being granted leave to intervene. I would not be assisted by any cross-examination. Mr Marks was a member of NCAT and was performing his function as such, at the time he made these decisions. That the applicant is challenging that does not make it so for the purposes of the application. Rather, if anything, it reflects that the Attorney General is the appropriate person to intervene to assist the Court. 9 The applicant's submissions for opposing leave to intervene, which are reflected in the transcript of the last hearing, in additional oral submissions and in writing, are misconceived. 10 The submissions of the Attorney General identifies the relevant principles applicable to the determination of this application. 11 The Court has power in r 9.12 of the Federal Court Rules. Without intervention, there is no contradictor in these proceedings. There is a need for an effective contradictor in these proceedings where allegations are made against a member of NCAT, with the allegations referring to matters relating to the performance of his duty. In my view, the Court will be assisted by an intervener as a party who would put alternative arguments to those of the applicant. 12 The Attorney General is plainly the appropriate person given his position of responsibility in respect of NCAT. An example of such intervention in like circumstances is Markisic v Magistrate Heilpern [2011] NSWSC 410 and the cases cited therein. 13 I am satisfied that the appropriate order is that the Attorney General be granted leave to appear as an intervener in these proceedings. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham.