Quach v New South Wales Civil and Administrative Tribunal

Court of Appeal (NSW)|2020-11-18|Before: Gleeson JA, Leeming JA, McCallum JA

L Michalko / F Shah (solicitors) (Second respondent)

Solicitors: Self-represented (Applicant) L Michalko, Health Care Complaints Commission (Second respondent) File Number(s): 2015/158685

Judgment

GLEESON JA: Application is made by Mr Michael Van Thanh Quach by notice of motion filed 10 February 2020 for the following relief: 1. to set aside a vexatious proceedings order made by the Court on 20 October 2017 in proceedings 2015/158685 (par 2); [1] 2. that the second respondent, the Health Care Complaints Commission (HCCC), is guilty of contempt by taking steps to enforce a costs order made by the NSW Civil and Administrative Tribunal (the Tribunal) on 21 April 2015 and that an arrest warrant be issued for the Chief Executive Officer of the HCCC (pars 3 and 7); 3. that each of the members of the Court dealing with the present application recuse themselves on the ground of apprehended bias having regard to their participation in one or more earlier decisions of the Court dismissing previous applications by Mr Quach to set aside the vexatious proceedings order (par 4); and 4. to stay any costs assessments or orders, including the costs order made by the Tribunal on 21 April 2015 in the disciplinary proceedings in the Tribunal (par 5). [2]
There is no par 1 of the notice of motion. Par 8 of the notice of motion contains the stated "grounds" on which relief is sought.
As to the relief sought in (3) above, by judgment delivered on 9 September 2020, each of the members of the Court declined the recusal application. [3]
Turning to the balance of Mr Quach's application, in response to directions made by the Registrar Mr Quach and the HCCC have filed written submissions on the issue of whether pars 3, 5 and 7 of the notice of motion should be struck out, either on the ground that leave to institute proceedings to seek such relief has not been sought and obtained under s 14 of the Vexatious Proceedings Act 2008 (NSW), or on the grounds in Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 13.4(1)(a) and (c) that the relief sought is frivolous and vexatious and an abuse of process.
Having considered the submissions of Mr Quach (of one page) and the HCCC and Mr Quach's reply submissions (of four pages), I am satisfied that the application may be disposed of without an oral hearing. Contrary to the submissions of Mr Quach, nothing in Annetts v McCann [4] supports his contention that he is entitled to an oral hearing. Mr Quach has been afforded procedural fairness by means of the opportunity to file written submissions, which he has taken up.

Par 2: application to set aside vexatious proceedings order

The vexatious proceedings order was made by the Court on 20 October 2017 under s 8(7)(a) and (b) of the Vexatious Proceedings Act. Mr Quach has been unsuccessful in three earlier applications to set aside that order: on 9 August 2018 [5] , on 20 March 2019 [6] and on 15 August 2019 [7] . On the last occasion, the Court declined to consider Mr Quach's application on the ground that the application was not materially different to two earlier unsuccessful applications by Mr Quach for the same relief. That course was available to the Court under s 9 of the Vexatious Proceedings Act.
On the present application, Mr Quach advanced two new contentions. First, he submitted that a vexatious proceeding order cannot be made in interlocutory proceedings, relying upon the decision of the Full Federal Court in Zetta Jet Pte Ltd v The Ship "Dragon Pearl" (No 2) [2018] FCAFC 132; (2018) 265 FCR 290 at [14] (Allsop CJ, Moschinsky and Colvin JJ). There is no such limitation in the Vexatious Proceedings Act, s 8. Nor is the Dragon Pearl authority for the proposition contended for by Mr Quach.
The Dragon Pearl involved an application for leave to appeal against a decision summarily dismissing in rem proceedings against a vessel. Leave to appeal was granted and orders made varying the orders of the primary judge to allow the applicant to pursue an application for urgent provisional relief based upon a foreshadowed claim to orders under s 588FF of the Corporations Act 2001 (Cth). The remarks in the Dragon Pearl at [14], concerning a foreshadowed argument on the proposed appeal in that matter based on the principles of res judicata, do not have any relevance to the present application by Mr Quach to set aside the vexatious proceedings order made by this Court.
Second, Mr Quach appeared to raise a constitutional question. He submitted that the vexatious proceedings order is invalid based on s 109 of the Constitution. No argument was advanced in support of this constitutional point; in particular, Mr Quach failed to identify any law of the Commonwealth in respect of which it is said that the Vexatious Proceedings Act or any provision thereof is inconsistent. Nor is there evidence that Mr Quach has given notice pursuant to s 78B of the Judiciary Act 1903 (Cth) to the Commonwealth and State Attorneys-General.
Mr Quach indicated in his reply submissions filed 11 November 2020 that s 78B notices would be served on Commonwealth and State Attorneys-General by 2 December 2020. However, it is not necessary for this Court to await the outcome of that foreshadowed step by Mr Quach. The mere assertion of invalidity of the Vexatious Proceedings Act by reason of s 109 of the Constitution does not lead to the characterisation of this application as involving "a matter arising under the Constitution or involving its interpretation" for the purposes of s 78B of the Judiciary Act. As French J (as his Honour then was) said in Deputy Commissioner of Taxation v Warrick (No 2) [2004] FCA 918 at [103]: That section does not impose a duty on the Court not to proceed pending the issue of notices to the Attorneys-General in every case in which the Constitution is mentioned in a pleading no matter how trivial, unarguable or concluded the constitutional point may be - Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 167 ALR 303 at 308 [14] and the cases there cited. No arguable defence and no basis for staying the proceedings pursuant to s 78B of the Judiciary Act was disclosed by reason of the reference in the pleadings to the Constitution.
Similarly, in the present case, no arguable s 109 inconsistency and no basis for staying this application pursuant to s 78B of the Judiciary Act was disclosed by reason of the mere reference in Mr Quach's submissions to the Constitution [8] .
This fourth application by Mr Quach to set aside the vexatious proceedings order should be dismissed as an abuse of process.

Failure to obtain leave under s 14 of the Vexatious Proceedings Act

There is a fundamental difficulty with the relief sought in pars 3, 5, 6 and 7 of the motion. The relief is caught by the terms of the vexatious proceedings order made on 20 October 2017 because the contempt application, the stay application and par 6 of the motion (whatever is intended by it) all relate to proceedings before the Tribunal relating to the costs order made on 21 April 2015 or proceedings in this Court (2015/158685) in which the HCCC gave an undertaking to the Court, which Mr Quach alleges the HCCC has breached. Mr Quach has not sought leave under s 14 of the Vexatious Proceedings Act to institute proceedings seeking this relief.
For this reason alone, these pars of the motion should be summarily dismissed on the ground that the motion is an abuse of process.
Nonetheless, I will address why the relief sought is also misconceived.

Pars 3 and 7: allegation of contempt against HCCC

The contention that the HCCC is guilty of contempt is based on the allegation that the HCCC breached an undertaking which it gave to this Court on 29 June 2015 not to enforce costs orders made by the Tribunal on 21 April 2015 (the enforcement undertaking) before the special leave applications by Mr Quach were determined by the High Court.
In 2017, this Court summarily dismissed Mr Quach's motion filed 14 March 2017 seeking similar relief and orders against the HCCC and/or Mr Paul Taylor [9] . It is convenient to reproduce [24]-[31] of my reasons given on 25 July 2017: [24] Under the heading "Grounds for the Notice of Motion", Mr Quach contends that the Commission breached "exhaustive undertakings" given to this Court on 29 June 2015 not to enforce certain costs orders until his two applications for special leave to appeal to the High Court had been determined by the High Court. [25] This contention requires brief reference to the following matters by way of background. [26] The two applications for special leave to appeal to the High Court concerned earlier (and separate) proceedings in this Court (proceedings 2015/482869 and 2015/67618) brought by Mr Quach seeking judicial review of the disciplinary or Stage One decision by NCAT made on 5 February 2015. [27] On 24 March 2015, this Court (Basten JA, Ward JA and Sackville AJA) dismissed two summonses filed by Mr Quach seeking judicial review of the Stage One decision of NCAT: Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63 (the 2015 Application). [28] On 13 August 2015, the High Court dismissed Mr Quach's two applications for special leave to appeal from the judgment and orders of this Court given on 24 March 2015: Quach v New South Wales Civil and Administrative Tribunal & Anor; Quach v Health Care Complaints Commission [2015] HCASL 131. [29] At a directions hearing before Meagher JA on 29 June 2015 (relating to this proceeding 2015/158685 and also proceedings 2015/48269 and 2015/67618), an undertaking was given to the Court by counsel on behalf of the Commission, in relation to enforcement of the costs orders made against Mr Quach by this Court on 24 March 2015 on the 2015 Application. Although the specific terms of that undertaking was not in evidence on the present motion, the terms of that undertaking as recorded in the Court's file was as follows: 1. Note the undertaking to the Court of the second defendant (Health Care Complaints Commission) by its counsel that it will not seek to enforce the costs orders made by: 1. the Court of Appeal in proceedings 2015/48269 and 2015/67618 (together the Court of Appeal proceedings) on 24 March 2015; and 2. the New South Wales Civil and Administrative Tribunal on 21 April 2015 prior to the High Court determining the plaintiff's applications for special leave in respect of the Court of Appeal proceedings. [30] There is no evidence that the Commission sought or attempted to enforce the costs orders made in its favour on the 2015 Application, prior to the High Court's dismissal of the two special leave applications on 13 August 2015. [31] There is no merit in Mr Quach's contention that the Commission and/or Mr Taylor breached the undertaking given to the Court on behalf of the Commission on 29 June 2015.
In addition to the procedural deficiency that the contempt application does not include a statement of charge as required by Supreme Court Rules 1970 (NSW), r 55.7, there are no new grounds or evidence relied upon by Mr Quach on this motion. There is no evidence that the HCCC took any step to enforce the costs order made by the Tribunal on 21 April 2015 before the special leave applications by Mr Quach were determined by the High Court. On the contrary, the High Court dismissed the special leave applications by Mr Quach on 13 August 2015, [10] almost 4 years before the HCCC's application for an assessment of costs was filed on 12 December 2019.
It follows that the premise of the contempt allegation, that HCCC breached the enforcement undertaking, is factually misconceived.

Par 5: Stay application

The basis upon which Mr Quach seeks a stay of the costs order made by the Tribunal on 21 April 2015 is that enforcement of the costs order is a contempt of court by the HCCC. For the reasons indicated that is not the case. No basis for the stay has been identified by Mr Quach.

Par 6: Other matters

Paragraph 6 of the notice of motion stated: The Health Care Complaints Commission Act 1993 (NSW) does not have any application in the Legal Profession Uniform Law Application Act 2014 (NSW) and Legal Profession Act 2004 (NSW).
In par 8 of the motion under the heading "Grounds for Notice of Motion Order Sought", Mr Quach contended that: Pursuant to Pt 2 of the Legal Profession Uniform Law Application Act 2004 (NSW), the Health Care Complaints Commission Act 1993 (NSW) has no Application of Uniform Law.
To the extent that this contention should be taken to be a reference to the Legal Profession Uniform Law Application Act 2014 (NSW), it is meaningless. Pt 2 of that Act is titled 'Application of Uniform Law' and makes provision for the application of various statutes to the Legal Profession Uniform Law (NSW), as well as dealing with miscellaneous trust accounting and other matters. None of those matters relate to the "application" of the Health Care Complaints Commission Act 1993 (NSW) as contended. No written submissions were advanced by Mr Quach in support of par 6 of the notice of motion. There is no basis for any relief based on par 6 of the motion.

Conclusion and Orders

There is no reason why costs should not follow the event of the motion: UCPR, r 42.1.
Accordingly, I propose the following orders: 1. The notice of motion filed 10 February 2020 be dismissed as an abuse of process. 2. The applicant (Mr Quach) to pay the second respondent's (HCCC) costs of the motion.
LEEMING JA: I agree with Gleeson JA.
McCALLUM JA: I agree with Gleeson JA.

Endnotes

Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267.
Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32.
Quach v New South Wales Civil and Administrative Tribunal [2020] NSWCA 214.
(1990) 170 CLR 596; [1990] HCA 47.
Quach v Health Care Complaints Commission; Quach v NSW Civil and Administrative Tribunal [2018] NSWCA 175.
Quach v NSW Civil and Administrative Tribunal [2019] NSWCA 49.
.Quach v New South Wales Civil and Administrative Tribunal [2019] NSWCA 200 at [2]-[3].
See also Mao v AMP Superannuation Ltd [2018] NSWCA 72 at [16]-[19]; Nikolic v MGICA Ltd [1999] FCA 849; Australian Competition and Consumer Commission v Berbatis Holdings Pty Ltd (1999) 95 FCR 292; [1999] FCA 1151 at [14]; Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 3) (2010) 184 FCR 516; [2010] FCA 428 at [14].
Quach v New South Wales Health Care Complaints Commission (No 6) [2017] NSWCA 183 at [24]-[31] (Gleeson JA, Simpson JA and Sackville AJA agreeing).
Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2015] HCASL 131. 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: 18 November 2020

Health Care Complaints Commission Act 1993(NSW)

Legal Profession Act 2004(NSW)

Legal Profession Uniform Law Application Act 2004(NSW)

(NSW), the Health Care Complaints Commission Act 1993(NSW)

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