Quach v New South Wales Civil and Administrative Tribunal

April 2017 motion

1. Mr Quach's notice of motion filed 18 April 2017 (the April 2017 motion) seeks orders:

• to "[n]ullify the decision of Health Care Complaints Commission v Quach [2015] NSWCATOD 2 and [2015] NSWCATOD 32" (order 2);
• that the motion cannot be heard by a single judge of appeal (order 4); and
• an order in the following terms (order 5): 5. Full bench to hear this Motion, cannot be constituted by Judges who have pre-judged this matter, including: I. Basten J II. Sackville J III. Ward J IV. McFarlan J V. McColl J VI. Meagher J VII. Leeming J.

1. Under the heading "Grounds for Notice of Prohibition Order", Mr Quach contends: 3. Grounds … I. … The decisions of: 1. Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63 is null. 2. Health Care Complaints Commission v Quach in [2015] NSWCATOD 2 and [2015] NSWCATOD 32 are null. … There was a lack of procedural fairness. i. There was no notice that a decision adversely affecting my interests will be made; ii. I was constantly interrupted by Sackville, Basten and Ward JJ. … III. The New South Wales Health Care Complaints Commission has always been in the wrong Tribunal, in relation to the First Set of Complaints. The First Set of Complaints was made in the Medical Practice Act 1992 (NSW) and must be heard in the Medical Tribunal of New South Wales constituted under Section 147 of the Medical Practice Act 1992 (NSW) pursuant to the Medical Practice Act 1992 (NSW) Schedule 5 Part 2 Clause 11 (2) Continuation of complaints, inquiries and appeals, "(2) Any order, decision or determination resulting from an inquiry or appeal to which this clause applies is taken to have been made under the corresponding provisions of this Act and is to have effect accordingly." IV. The New South Wales Health Care Commission forfeited Orders in the Medical Tribunal of New South Wales, constituted under S165A of the Health Practitioner Regulation National Law (NSW), before re-lodging the First Set of Complaints in the New South Wales Civil and Administrative Tribunal constituted under S165B of the Health Practitioner Regulation National Law (NSW). V. Pursuant to the High Court Ruling in Yager v R [1977] the definition of "existing tribunals" in the Civil and Administrative Tribunal Act 2013 (NSW) Sch 1 Pt 2 cl 7 cannot be modified or qualified to mean Medical Tribunal of New South Wales, constituted under Section 147 of the Medical Practices Act 1992 (NSW) S147. VI. The New South Wales Civil and Administrative Tribunal do not have allocated function nor power to hear matters made under the Medical Practice Act 1992 (NSW). …
2. Submissions dated 27 April 2017 were filed by Mr Quach on 2 May 2017. These submissions repeated the matters appearing under the heading "Grounds for Prohibition Order" and the terms of order 5 in the April motion.
3. This motion should be dismissed. Insofar as it makes a claim for judicial review of the Stage One and Stage Two decisions of NCAT, the claim is not made in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). It is not made in separate proceedings commenced by summons: UCPR, r 59.3. It is not made within time, being filed more than three months after the date of the relevant decisions of NCAT on 5 February 2015 and 21 April 2015: UCPR, r 59.10(1). Those rules apply to proceedings in this Court seeking judicial review, by reason of UCPR, r 51.45(1A).
4. Further and importantly, the motion seeks to re-agitate the subject matter of the earlier applications by Mr Quach for judicial review of the NCAT decisions, namely, the 2015 Application with respect to the Stage One decision and the 2016 Application with respect to the Stage One and Stage Two decisions. The further attempt to seek judicial review of the NCAT decisions is vexatious and an abuse of process.
5. Insofar as the motion seeks an order that it cannot be heard by a single judge of appeal, it is otiose.
6. Insofar as the motion seeks to set aside the judgment and orders of this Court on the 2015 Application on the ground of asserted procedural unfairness, the application is out of time having regard to the 14-day time limit in which to seek to set aside or vary judgments or orders: UCPR, r 36.16.
7. In any event, the complaint by Mr Quach that he was denied procedural fairness because there was no notice that an adverse decision affecting his interests would be made on the 2015 Application, is hopeless. Mr Quach, as the applicant on the 2015 Application, was plainly on notice that if his application for judicial review was unsuccessful, the Stage One decision of NCAT would stand, subject to the possibility of any successful challenge before the High Court to the decision of this Court. As mentioned, Mr Quach's two applications for special leave to appeal were dismissed by the High Court.
8. The complaint by Mr Quach that he was "constantly interrupted" by the members of the Court who heard the 2015 Application is not supported by any evidence (such as the transcript of the hearing on 11 March 2015). Nor is this complaint addressed in Mr Quach's written submissions dated 27 April 2017.
9. There is no merit in any of the orders sought in the April 2017 motion.

May 2017 motion

1. Mr Quach's notice of motion filed on 9 May 2017 (the May 2017 motion) seeks the following orders: 2. The Notice of Motion is referred to the Full Bench for determination. 3. The full bench to hear this Motion, cannot be constituted by Judges who have pre-judged this matter, including: I. Basten J II. Sackville J III. Ward J IV. McFarlan J V. McColl J VI. Meagher J VII. Leeming J.
2. Under the heading "Grounds for Order sought", Mr Quach contends: 4. Grounds for Order sought I. A Registrar cannot exercise the jurisdiction of the Court of Appeal. II. The respondents NSW Civil and Administrative Tribunal is the WRONG TRIBUNAL and the NSW Health Care Complaints Commission was in the WRONG TRIBUNAL in relation to the First Set of Complaints. The respondents, therefore, have no standing in this matter.
3. The coversheet of the May 2017 motion states that Mr Quach seeks "Review of Court of Appeal Registrar decision on 24 April 2017 to refer notice of motion 18 April 2017 to the President". This seems to be a reference to what occurred at the directions hearing before the Registrar on 24 April 2017. On that occasion, the transcript records that Mr Quach pressed that the April 2017 motion be determined by a court constituted by a "Full Bench". The Registrar indicated that the President of the Court of Appeal would determine how the Court was constituted with respect to the determination of the April 2017 motion and made directions for the filing and service of Mr Quach's submissions in support of the April 2017 motion.
4. Mr Quach filed submissions on 9 May 2017 in which he contended that "… a Judge of Appeal must refer the Notice of Motion 18 April 2017 to be determined by the full bench pursuant to Section 46(2)(b) of the Supreme Court Act 1970 (NSW)".
5. This motion should be dismissed. It proceeds upon the incorrect premise that the Registrar of the Court of Appeal could not refer the April 2017 motion to the President of the Court of Appeal for consideration of his request that the motion be dealt with by the Court constituted by three judges.
6. Insofar as the "grounds" stated in the May 2017 motion assert that NCAT lacked jurisdiction to hear and determine the first Notice of Complaint, that contention was rejected by this Court on the 2015 Application (see [2015] NSWCA 63 at [35]-[41]). It is vexatious and an abuse of process to seek to re-agitate that matter.
7. There is no merit in any of the orders sought in the May 2017 motion.

June 2017 motion

1. Mr Quach's notice of motion filed 13 June 2017 (the June 2017 motion) seeks orders:

• prohibiting the Registrar of the Court of Appeal "to make any decision in this matter, and any other matter involving a medical practitioner under the legislation of Health Practitioners' Regulation National Law (NSW)", on the grounds that the Registrar of the Court of Appeal is not a "senior judicial officer" pursuant to the Section 165 definition (order 2);
• to "[n]ullify the decision of Health Care Complaints Commission v Quach [2015] NSWCATOD 2 and [2015] NSWCATOD 32" (order 3);
• that the motion could not be heard by a single judge of appeal exercising the jurisdiction of the Court of Appeal (order 5);
• that the "full bench" to hear the motion cannot include judges who have pre-judged this matter, including among others "Sackville J" (order 7)

1. Under the heading "Grounds for notice of prohibition order", Mr Quach repeated the contentions appearing under the same heading in the April 2017 motion (see [12] above).
2. On 16 June 2017, the Registrar of the Court of Appeal made the following directions with respect to the June 2017 motion: 1. Vacate the return date of the motion on Monday 19 June 2017. 2. Direct the applicant to file and serve submissions in respect of the motion and on the question of recusal by 26 June 2017. 3. If the applicant seeks an oral hearing, the applicant is to address the reasons why there should be one in the written submissions. 4. Balance of the directions to be made in the matter reserved to the Court.
3. Submissions dated 26 June 2017 were filed by Mr Quach on 27 June 2017. These submissions largely repeat the matters asserted under the heading "Grounds for Notice of Prohibition Order" in the June 2017 motion.
4. This motion should be dismissed.
5. Insofar as the motion seeks prohibition against the Registrar of the Court of Appeal because the Registrar is not a "senior judicial officer" within the definition in Health Practitioner Regulation National Law (NSW), s 165, the relief sought is misconceived. Pursuant to s 13 of the Civil Procedure Act 2005 (NSW) (the Civil Procedure Act), a Registrar of the Court may exercise the functions of the Court as stated in Parts 1 to 3 of the schedule to the direction given by the Chief Justice dated 26 November 2012.
6. Section 165 of the Health Practitioner Regulation National Law (NSW) defines "senior judicial officer" as follows: Senior judicial officer means a person who is: (a) a Judge of the Supreme Court (or a Judge or other person having the same status as a Judge of the Supreme Court), or (b) a Judge of the District Court.
7. The definition of senior judicial officer is relevant to s 165B of the Health Practitioner Regulation National Law (NSW). That section requires that a senior judicial officer be a member of the Tribunal constituted to hear certain complaints, applications and appeals.
8. No part of the definition of "senior judicial officer" or the requirement that certain proceedings of the Tribunal must include a senior judicial officer, affects the delegation of powers to the Registrar under s 13 of the Civil Procedure Act in relation to proceedings before the Court of Appeal.
9. It follows that there is no merit in Mr Quach's contention in his written submissions dated 26 June 2017 (par 11) that the Registrar of the Court of Appeal should have disqualified himself from giving directions in relation to motions filed in these proceedings, or that the Registrar acted in any way improperly in referring the notices of motion filed in these proceedings to the President of the Court of Appeal for the purposes of determining the members of the Court nominated or allocated to hear and determine the motions.
10. Insofar as the motion seeks judicial review of the Stage One and Stage Two decisions of NCAT, it should be dismissed for the same reasons as given above in relation to the April 2017 motion.
11. Insofar as the motion seeks an order that it cannot be heard by a single judge of appeal, it is otiose.

May 2017 motion

1. Mr Quach by his notice of motion filed 2 May 2017 (the second May 2017 motion) seeks orders:

• To "nullify" the February 2015 and April 2015 decisions of NCAT (order 2);
• that the members of the bench who will constitute the Court for the determination of the motion do not include judges who have "pre-judged this matter", including, relevantly, Sackville AJA (order 5).

1. Under the heading "Grounds for orders sought", Mr Quach contends that his summons in "2015/48269 was not heard by this Court on 11 March 2015" and that this Court's decision in the 2015 Application is "null".
2. In support of this motion, Mr Quach relied upon his affidavit sworn 18 April 2017, which annexed an email from Mr Quach's former solicitor to Mr Quach dated 15 August 2013 informing him of certain (procedural) orders made by the Medical Tribunal of New South Wales on 13 August 2013. The significance of those orders was not explained, and no written submissions were provided in support of this motion.
3. This motion should be dismissed. Order 2 of the second May 2017 motion replicates order 2 of the April 2017 motion and should be dismissed for the same reasons as given above with respect to the April 2017 motion.
4. Mr Quach's contention that the summons filed on 11 February 2015 in proceeding 2015/48269 was not dealt with by this Court on the 2015 Application is misconceived. The Court dealt with that summons in the 2015 Application in its reasons delivered on 24 March 2015. That summons was dismissed by this Court.

Mr Quach's further submissions

1. Further submissions dated 5 July 2017 were filed by Mr Quach (without leave) on 6 July 2017. Mr Quach contends that Sackville AJA must disqualify himself from "proceeding 2015/158685 because the appointments in this proceeding and related proceedings is and were invalid, respectively". The reference to "related proceedings" may be taken to be a reference to proceedings 2015/67618 and 2015/48269.
2. The contention advanced by Mr Quach is that the terms of the commission of Sackville AJA to exercise the office of, relevantly, an acting judge of appeal, "at such times and places as may be arranged with the Chief Judge of the said court", requires the arrangement of the Chief Justice of the Supreme Court. Accordingly, the President of the Court of Appeal cannot nominate or allocate Sackville AJA to be a member of this Court to hear and determine the present applications, or earlier proceedings involving Mr Quach, because only the Chief Justice can make such arrangements. The earlier proceedings referred to are the 2015 Application, Quach v New South Wales Health Care Complaints Commission (No 3) [2016] NSWCA 284 and Quach v New South Wales Health Care Complaints Commission (No 4) [2016] NSWCA 285.
3. This contention must be rejected.
4. Section 39(1) of the Supreme Court Act 1970 (NSW) relevantly provides: (1) Intra-curial arrangements for the transaction by the Judges of Appeal of the business of the Court of Appeal shall be made by the President of the Court of Appeal with the concurrence of the Chief Justice.
5. In Rajski v Wood (1989) 18 NSWLR 512, Hope AJA said at 526: … it is in my opinion not open to a litigant to institute proceedings in the court to challenge the right or power of a particular judge to hear and determine a case to which he, the litigant, is a party. There is no difference in this regard whether the assignment of the judge to the case has been made pursuant to s 39, or pursuant to the inherent power of the court. In neither case can the litigant challenge the assignment, and proceedings to make such a challenge disclose no reasonable cause of action.
6. Priestley JA agreed with Hope AJA, noting at 523, that there was nothing in s 39 of the Supreme Court Act or otherwise in the law of New South Wales which suggests that it is open to a litigant to make a challenge, by further litigation within the Court, to the administrative arrangements within the Court by which the business of the Court is allocated amongst its judges.

Should the Court make orders under the Vexatious Proceedings Act 2008 (NSW)?

1. The problem which confronts this Court and the respondents is that Mr Quach will not or cannot accept that his claims for judicial review of the Stage One and Stage Two decisions of NCAT have been determined by this Court and that further attempts to re-litigate those claims are both futile and an abuse of process.
2. Having regard to the procedural history in this matter and in related proceedings (see Quach v Health Care Complaints Commission (No 6) [2017] NSWCA 183), it seems very likely that, unless a vexatious proceedings order is made, Mr Quach will persist in seeking to re-open orders made by this Court. The consequences of further applications inevitably will be inconvenience, unnecessary expense and a waste of the Court's limited time and resources.
3. Accordingly, consideration should be given to making orders pursuant to the Vexatious Proceedings Act 2008 (NSW) prohibiting Mr Quach from instituting further proceedings in New South Wales relating to the subject matter of the Stage One and Stage Two decisions of NCAT or relating to proceedings in this Court 2015/67618 and 2015/48269.
4. Mr Quach should be given an opportunity to make written submissions in opposition to any such proposed orders. The terms of the order that I would propose are set out below at [57(5)-(8)]. The proposed orders are in similar terms to the show cause orders made by this Court in other proceedings: see Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [14].

Conclusion and Orders

1. It would be oppressive to require the respondents to file and serve written submissions in response to Mr Quach's motions. Each of the four motions should be summarily dismissed as vexatious and an abuse of process on the papers.
2. Orders should also be made giving Mr Quach an opportunity to file any written submissions showing cause why orders should not be made under the Vexatious Proceedings Act.
3. Accordingly, I propose the following orders in the two proceedings: 2015/67618 1. Notice of motion filed 18 April 2017 dismissed as vexatious and an abuse of process. 2. Notice of motion filed 9 May 2017 dismissed as vexatious and an abuse of process. 3. Notice of motion filed 13 June 2017 dismissed as vexatious and an abuse of process. 2015/48269 1. Notice of motion filed 2 May 2017 dismissed as vexatious and an abuse of process. 2015/67618 and 2015/48269 1. Order that Michael Quach, the applicant on the motions filed on 18 April 2017, 9 May 2017 and 13 June 2017 in proceeding 2015/67618 and the applicant on the motion filed on 2 May 2017 in proceeding 2015/48269, show cause why the following orders should not be made: 1. Pursuant to the Vexatious Proceedings Act 2008 (NSW), s 8(7)(a), an order staying any further motions filed by Michael Quach and pending in proceedings 2015/67618 and 2015/48269 in the New South Wales Court of Appeal; 2. Pursuant to the Vexatious Proceedings Act 2008 (NSW), s 8(7)(b), an order prohibiting Michael Quach from instituting proceedings in New South Wales relating to the subject matter of proceedings 1420086 and 1420065 in the New South Wales Civil and Administrative Tribunal, being proceedings entitled Health Care Complaints Commission v Quach, or relating to proceedings 2015/67618 and 2015/48269 in the New South Wales Court of Appeal. 1. Direct that Michael Quach file any written submissions showing cause on or before 15 August 2017, such submissions not to exceed 15 pages in length. 2. If Michael Quach wishes to make oral submissions in the matter, he is to address that request for a hearing in open court in his written submissions. 3. The respondents to the motions are excused from attending in the matter.
4. SIMPSON JA: I agree with Gleeson JA.
5. SACKVILLE AJA: I agree with the orders proposed by Gleeson JA and with his Honour's reasons.
6. As Gleeson JA has noted in a separate judgment delivered today: Quach v New South Wales Health Care Complaints Commission (No 6) [2017] NSWCA 183 at [39]. Mr Quach filed without leave written submissions purporting to relate to proceeding 2015/67618, seeking an order that I disqualify myself.
7. The basis of the application seems to be that I have sat on other matters involving unsuccessful applications by Mr Quach. In none of these matters have I made findings adverse to Mr Quach's credibility. My involvement in them does not demonstrate either actual bias against Mr Quach or an inability to deal fairly, according to law, with any additional application made by Mr Quach.
8. Where a litigant brings repeated applications seeking to reargue essentially the same points, it is inevitable that some Judges will have to sit on more than one of the applications. The terms of Mr Quach's various motions suggest that no less than seven Judges of Appeal are disqualified from hearing and determining any further applications he chooses to bring. A litigant cannot dictate the composition of a bench simply by bringing repeated applications agitating the same issues.

Amendments 27 July 2017 - Amendment to date of decision 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: 27 July 2017