Quach v New South Wales Health Care Complaints Commission

Court of Appeal (NSW)|2016-10-19|Before: McColl JA, Macfarlan JA, Meagher JA, Coll JA

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

McCOLL JA: In Quach v New South Wales Health Care Complaints Commission (Quach (No 3)), [1] the Court dismissed the applicant's challenge to the following order (Teoh Order) made by Meagher JA on 21 March 2016 in Quach v Health Care Complaints Commission of New South Wales (Quach (No 2)): [2] "8. Direct the Registrar, should Mr Quach file any further notice of motion in these proceedings (other than an application seeking a review of this decision), to vacate the return date of that motion, notify the parties and refer the papers to a judge nominated by the President to determine, in chambers, whether the Court should fix a new return date and notify the parties of that date, or whether Mr Quach should be invited to show cause in writing why the Court should not in chambers summarily dismiss the application as vexatious and an abuse of process."
The jurisprudence underpinning the Teoh Order is discussed in Quach (No 3).
Subsequent to the Teoh Order, Mr Quach filed three notices of motion on 6 June 2016, 26 July 2016 and 16 August 2016 respectively (further motions). Each identifies the Health Care Complaints Commission (Commission), the New South Wales Civil and Administrative Tribunal (NCAT) and the Attorney General of New South Wales as those persons or entities against whom or which the orders are sought (respondents).
On 30 June 2016 and 27 July 2016, Meagher JA directed Mr Quach to show cause in writing why the Court should not summarily dismiss the 6 June and 26 July 2016 motions in chambers as vexatious and an abuse of process. On 18 August 2016, Beazley P directed Mr Quach to show cause in writing why the Court should not summarily dismiss the 16 August 2016 motion in chambers as vexatious and an abuse of process. Mr Quach has filed written submissions purporting to show cause in respect of all three motions. In addition, as shall become apparent, Mr Quach included in each motion, statements in the nature of submissions to support the orders he seeks.
This judgment is written on the basis that readers are familiar with Quach v New South Wales Health Care Complaints Commission (Quach (No 1)), [3] Quach (No 2) and Quach (No 3). The orders in Quach (No 1) were entered on 10 February 2016, the day judgment was delivered, when they were recorded in the Court's computerised court record system. A note advising of the implications of this appeared on the coversheet of the judgment.
The question to be determined in chambers is whether any of the further motions should be summarily dismissed as vexatious and an abuse of process, or whether the material filed by Mr Quach warrants a hearing in which any respondent to the motion would participate. In the event the Court determines a hearing is warranted, it will fix a new return date for the motion and notify the parties.
As I explained in Quach (No 3), in making the Teoh Order, Meagher JA applied Teoh v Hunters Hill Council (No 4). [4] After the order was made in Teoh (No 4), Mrs Teoh filed further applications which were dealt with by a bench of three judges. The same course has been adopted in relation to the consideration of the further motions.
I have explained the concepts of "vexatious and an abuse of process" referred to in the Teoh Order in Quach (No 3). [5] One aspect of those concepts which repays repetition in the context of the further motions is that of litigious steps which are "productive of serious and unjustified trouble and harassment". [6]
It should be said at the outset that, prima facie, Mr Quach's motions are vexatious and oppressive because his summons seeking judicial review has been dismissed and the orders entered.
Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding, apart from any specific and relevant statutory provision, or any susceptibility to being set aside (pursuant to a power derived from equity) if the order has been obtained by fraud, is at an end in that court and is in its substance beyond recall by that court. [7] An entered order "marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court." [8] This position reflects the policy of the law that there should be finality in litigation, such that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. [9]
Accordingly, Mr Quach's motions are doomed to failure, and therefore "hopeless" in this case as discussed in Quach (No 3), save if they fall within any limited exception to the principle of finality to which I have referred.
As shall become apparent, none of the further motions satisfies that requirement.

6 June 2016 motion

Mr Quach's 6 June 2016 motion seeks first an order that the NCAT decisions [10] be made or declared "void" and secondly, an order removing the Commission as a party to the proceedings.
Under the heading "Grounds for order sought 1", Mr Quach submitted that in Quach (No 1), the Court of Appeal had "invalidated" the NCAT decisions. This was because, he contended, the Court had in substance held that his Honour Acting Judge Marks was not validly appointed as a member of the Tribunal which made the NCAT decisions. Insofar as the second order he sought was concerned, the motion identified the basis of that as having been that the Commission "has never had any validate statutory authority to act [and] [a]t this point in time, there is no valid decisions to maintain [sic, as in original]." In an affidavit apparently in support of the 6 June 2016 motion (albeit said to be "for subpoena 6 June 2016"), Mr Quach attached a copy of the decision in Quach (No 1).
Mr Quach's show cause submissions do not obviously relate to the orders sought in the 6 June motion.
First, he submits that there is no "source of power" in the Health Care Complaints Commission Act 1993 (NSW) (the HCCC Act) "to construct and sustain" an order dismissing an application on the grounds of being vexatious and an abuse of process. That challenge is not the subject of the 6 June motion, but, rather, it would appear, seeks to challenge the Teoh Order. That was rejected in Quach (No 3).
I would add that the first submission appears to be based on a misconception under which Mr Quach labours which became apparent during the hearing of Quach (No 3). The HCCC Act deals, among other matters, with the making, resolution, investigation and prosecution of health care complaints concerning the professional conduct of a health practitioner. Mr Quach appears to believe that the Court has no power to make orders concerning him unless a statutory basis for the exercise of that power can be found in the HCCC Act. As was explained to him during the hearing of Quach (No 3), that is not the case. The Teoh Order was made in the exercise of the Court's inherent jurisdiction to prevent abuse of process.
Mr Quach's second submission in support of the first order sought effectively repeats the ground set out in the 6 June motion concerning the appointment of Acting Judge Marks as Principal Member of the Tribunal which heard the disciplinary proceedings concerning him.
In Quach (No 1) the Court held that the Tribunal over which Acting Judge Marks presided which heard the disciplinary proceedings concerning Mr Quach was properly constituted. [11] Mr Quach also sought to raise this issue on the application to review Meagher JA's decision in Quach (No 2). That challenge was rejected in Quach (No 3) where it was pointed out that Mr Quach had been informed during the hearing that if he wished to complain about the decision in Quach (No 1) he could seek to appeal to the High Court. [12]
As indicated above, in the grounds set out in the 6 June motion purportedly supporting the second order, Mr Quach contends that the Commission "has never had any validate statutory authority to act. At this point in time there is no valid decisions to maintain [sic, as in original]." In his written submissions, in apparent support for the second order, Mr Quach contends, in a different vein, that in the absence "of any decision(s) to maintain", the Commission no longer has any standing and accordingly should be removed as a party. Neither contention has any basis in law.
As to the first contention, the Commission was established pursuant to the HCCC Act, s 75 with functions, among other matters, of dealing under the Act with complaints relating to the professional conduct of health practitioners (s 80(1)(a)) and to make complaints concerning the professional conduct of health practitioners and to prosecute those complaints before the appropriate bodies, including professional councils, professional standards committees and tribunals (s 80(1)(c)). It referred the complaints it prosecuted against Mr Quach in NCAT pursuant to the HCCC Act, seeking findings of unsatisfactory professional conduct or professional misconduct under the Health Practitioner Regulation National Law (NSW) (National Law). [13]
As to the second contention, the Commission was a proper party at all times to the prosecution of the complaints it brought against Mr Quach. The proceedings have been brought to finality. There is no basis for removing a party to concluded proceedings.
There is no foundation for the orders sought in the 6 June motion. It would be oppressive to require the respondents to deal with the motion.
Mr Quach has not shown cause why the 6 June motion should not be dismissed as vexatious or an abuse of process.

26 July 2016 motion

The 26 July 2016 motion seeks the following orders: "1. Leave be granted for Subpoena to produce be served on Westmead Hospital to produce information relating to 'The position of employment of Dr Grant Sara in 1994 in the psychiatry department. Please confirm if Dr Grant Sara was employed at Westmead Hospital as a Trainee Psychiatry Registrar or fully qualified Staff/Consultant Psychiatrist.' 2. Leave be granted for Subpoena to produce be served on the University to Sydney Westmead Hospital Clinical School to produce information relating to i. 'The examination result, of Doctor Van Thanh Quach, student number 9037892, in the psychiatry term of 1994. The examiner was Dr Grant Sara', and ii. 'As required by the Faculty of Medicine examination procedure in 1994, please confirm if a Professorial Viva was performed for Dr Van Thanh Quach following the examination by trainee Psychiatry Registrar Dr Grant Sara.' iii. 'Please confirm if Dr Grant Sara was employed by the University of Sydney as an academic in 1994.' 3. Invalidate the university examination result of mine, student number 9037892, in the Psychiatry term in 1994 at Westmead Hospital on the grounds that Dr Grant Sara was a trainee registrar and not qualified to examine medical students. 4. Leave be granted for Subpoena to produce be served on ACT Health Committee, Australian Health Practitioner Regulation Agency by its proper office to produce 'the originals or, if the originals are not available, copies of all letters, memoranda, notes reports and other documents, whether in paper form or electronic form, concerning or relating to the plaintiff, Dr Michael Van Thanh Quach.'"
In his grounds set out in the body of the 26 July notice of motion, Mr Quach referred to the application he made in order 5 of the 30 November 2015 amended notice of motion (amended motion) which related to a report of a Dr Anthony Samuels of 4 February 1999. It is not apparent, how, if at all, any of the subpoenas the 26 July notice of motion seeks leave to have issued relate to the amended motion. It is sufficient to say that in Quach (No 3), the Court held that Meagher JA did not err in rejecting Mr Quach's application before him to move on the amended motion on the basis that it had been dismissed in Quach (No 1). [14] To the extent, if at all, that Mr Quach relied upon the amended motion in support of the orders sought in the 26 July motion, any such reliance is misplaced for the reasons expressed in Quach (No 1), Quach (No 2) and Quach (No 3).
In the grounds set out in the body of the 26 July notice of motion, Mr Quach also contended that leave should be granted to issue the subpoenas referred to in orders 1, 2 and 4 on bases unnecessary to repeat in detail, but all of which proceed on the premise that there are extant proceedings in this Court which would warrant an evidentiary examination to be supported by the material produced in response to the subpoenas. It is sufficient to repeat that there are no extant proceedings in this Court in respect of which subpoenas can be issued. [15] The third order sought in relation to a "Dr Grant Sara" falls with the other orders, there being, again, no identified extant proceedings in the Court of Appeal to which it relates.
Mr Quach also submits that the subpoenas would not be necessary if "the prosecution would comply with its obligation to disclose information that is helpful to my matter." Mr Quach's "matter" has been finalised.
Pursuant to Meagher JA's direction on 27 July 2016 that Mr Quach show cause, Mr Quach filed written submissions on 28 July 2016.
In his show cause submissions filed in support of the 26 July motion, Mr Quach asserts that pursuant to the decision of the High Court in Yager v R, [16] "the definition of 'vexatious and abuse of process' in the Land and Environment Court jurisdiction cannot be used for modifying or qualifying another statutory definition contained in a different Act of Parliament". He therefore contends there is no application for findings of "vexatious and abuse of process" in the HCCC Act and accordingly, the Court cannot "construct nor sustain" an order dismissing his 26 July 2016 motion because there is no "source of power" in the HCCC Act to make a finding of "vexatious and abuse of process". Once again, this appears to be a challenge to the Teoh Order. It has nothing to do with the orders sought in the 26 July motion.
Yager concerned the interpretation of provisions of the Customs Act 1901-1975 (Cth) in order to determine whether cannabis the accused had brought into Australia was a prohibited import to which s 233B of that Act applied. Mr Quach did not identify any passage in that case which could be conceivably relevant to the 26 July motion. The written submissions Mr Quach provided in support of the 26 July motion seek to agitate the same submission as was put in support of the 6 June motion, to challenge the Teoh Order, albeit not in support of any order sought. The challenge to the Teoh Order was rejected in Quach (No 3).
There is no merit in any of the orders sought in the 26 July motion. Rather, they are hopeless. It would be oppressive to require the respondents to deal with the motion.
Mr Quach has not shown cause why the 26 July motion should not be dismissed as vexatious or an abuse of process.

16 August 2016 motion

Mr Quach's 16 August 2016 motion seeks a number of orders. First, orders freezing the assets of the Commission, the Medical Council of New South Wales and TressCox Lawyers (Orders 1, 3 and 4 respectively - freezing orders). Secondly, "Contempt of Court findings and appropriate penalty Orders [sic, as in original] be made against the Attorney General for New South Wales" (Order 2) and thirdly, an order that the Attorney General "re-instate my lease at Ground Floor, 37 George Street, The Rocks NSW 2000." (Order 5)
Mr Quach filed a bulky affidavit dated 16 August 2016, presumably in support of the same dated motion, to which he attached a variety of documents. These included what appeared to be documents from the Commission setting out itemised legal costs presumably in relation to the enforcement of a costs order against Mr Quach, extracts of submissions made on behalf of the Attorney General during the hearing of Quach (No 1), a letter written to the Attorney General on 16 December 2015, the edition of the Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales issued on 1 June 2007, some EFTPOS receipts, a document on the letterhead TGA eBS relating to Gardasil, miscellaneous pages of transcript variously dated in 2014 and 2015, what appears to be the index to the Commission's documents before NCAT and an email to Counsel for the Attorney General in the proceedings before the Court of Appeal in Quach (No 1).
Pursuant to Beazley P's direction of 18 August 2016 that Mr Quach show cause, Mr Quach filed written submissions on 18 August 2016.
Insofar as freezing orders 1 and 3 are concerned, they appear to be intended to support a challenge to the costs orders made, at least, in Quach (No 1) against Mr Quach in favour of the Commission. In their support, Mr Quach contends in the body of the notice of motion that there is no source of power in the HCCC Act to "construct and sustain any 'costs' Orders" in favour of the Commission. Secondly, he referred again to Yager to assert that "prosecution" in the HCCC Act "cannot be modified or qualified to mean 'prosecution'" in the National Law. Thirdly, he recites ss 92 and 93 of the HCCC Act without making any submission which would link those references to any other proposition relevant to the orders sought. Fourthly, he contends that the Commission was not entitled to seek costs because government solicitors "are not allowed to raise invoices for legal services". Fifthly, he asserts that "the sales of legal services are not reported to the Australian Taxation Office [ATO]", "[t]he profits are not reported and not taxed" and "Goods and Services Tax is not collected by the [Commission], which makes this cash flow untraceable by the [ATO]."
The submissions set out in the notice of motion in relation to the freezing order sought in relation to the Medical Council of New South Wales refers first to the fact that Council has delegated its function to certain associates of the Commission who, in turn, through the Commission, have sought costs orders in circumstances where no power to do so can be found in the HCCC Act. Secondly, they contend that the Council "has used registrant fees to collude with the [Commission] in cash flow that is untraceable and untaxed by the [ATO]."
As I have said, entry of a final judgment does not completely remove a court's jurisdiction concerning a proceeding. In particular, the court continues to have jurisdiction concerning the enforcement of the judgment. If the court that had pronounced a final, entered judgement had jurisdiction to grant a freezing order, it would have jurisdiction to make a freezing order in aid of enforcement. [17]
Mr Quach does not have any orders to enforce in the proceedings the subject of Quach (No 1). Rather, the Commission is the beneficiary of the costs orders it can enforce against him. Otherwise, even allowing for the indulgence one might extend to an unrepresented litigant, it is manifest that there is no rational relationship between any of his submissions concerning the freezing orders in relation to either the Commission or the Medical Council and the orders sought. The irrationality of the submissions Mr Quach makes in support of the freezing orders underlines their vexatious nature.
Finally, in relation to the freezing orders, it appears from the grounds Mr Quach set out in the 16 August motion in support of order 4 that TressCox Lawyers may have played a role in some proceedings before a Professional Standards Committee hearing which took place in 2011, in which that firm may have represented Mr Quach. TressCox is not a party to these proceedings and has played no part in them in either the Court of Appeal or, so far as I can discern, the NCAT hearing in respect to which Mr Quach sought judicial review. It would be entirely inappropriate, in my view, to set out the allegations Mr Quach makes in relation to that firm which both lack rationality and are of a scandalous nature. Suffice it to say that they could in no way support any order of the nature sought in order 4.
Insofar as the second order is concerned, the grounds set out in the notice of motion make a number of allegations concerning the New South Wales Attorney General which appear to relate to the Attorney's intervention in the proceedings on a basis limited to dealing with Mr Quach's challenges to Judge Marks' participation in NCAT. [18] A person accepted as an intervener becomes a party to the proceedings with all the privileges of a party. [19]
Prima facie, neither party, witness, counsel, the jury, or Judge can be put to answer, civilly or criminally, for words spoken in office. [20] Contempt of court proceedings are a well-established exception to this principle. [21] However, even in this respect, the court would carefully scrutinise allegations of contempt made by a person the subject of a Teoh Order to determine whether they are of substance before permitting them to proceed.
In Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd, [22] Gibbs CJ, Mason, Wilson and Deane JJ explained that: "Punishment for contempt [of court] serves two functions: (a) enforcement of the process and orders of the court, disobedience to which has been described as 'civil contempt'; and (b) punishment of other acts which impede the administration of justice, such as obstructing proceedings in court while it is sitting or publishing comments on a pending case, which have both been described as 'criminal contempt': Fox, History of Contempt of Court (1927), p. 1. As Lord Diplock said in Attorney-General v Leveller Magazine Ltd, criminal contempts '… all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process'." (footnotes omitted)
Mr Quach's submissions as set out in the notice of motion in support of order 2 are, in substance, an attempt to challenge the submissions the Attorney made in Quach (No 1) in relation to the limited issue on which the Attorney intervened, Mr Quach's challenge concerning Judge Marks' participation in the NCAT proceedings. The Attorney General's submissions and, too, those of the Commission to the same effect contending his Honour was validly appointed to preside over those proceedings were accepted by the Court in rejecting this aspect of the judicial review summons in Quach (No 1).
Mr Quach's contention that submissions accepted by a Court could constitute contempt of court is untenable and, again, illustrative of the vexatious nature of his motion.
Another matter Mr Quach suggests could constitute contempt is the Attorney's failure to respond to a letter of complaint "requesting to discontinue the prosecution." That contention is self-evidently hopeless.
Mr Quach did not advance any submissions in support of order 5.
Mr Quach has not demonstrated any reason why the 16 August motion should not be dismissed as vexatious or an abuse of process.

Orders

Each of Mr Quach's motions dated 6 June 2016, 26 July 2016 and 16 August 2016 respectively should be dismissed as vexatious and an abuse of process.
MACFARLAN JA: I agree with the judgment of McColl JA and also confirm my concurrence with Sackville AJA's observation in [53] of his judgment.
SACKVILLE AJA: McColl JA has provided detailed reasons for dismissing each of the three motions filed by Mr Quach as vexatious and oppressive. I agree with the orders proposed by McColl JA and with her Honour's reasons. It was necessary to consider each of Mr Quach's motions in some detail particularly to determine whether any fell within an exemption to the principle of finality.
However, I add this comment for future reference. I do not think it is necessarily consistent with the intention underlying Order 8 made by Meagher JA on 21 March 2016 that every time Mr Quach files a notice of motion detailed reasons must be given for determining (if it be the case) that the application should be dismissed as vexatious and an abuse of process. It is not only the time hearing vexatious claims in court that waste scarce judicial resources. It is also the time spent preparing reasons that address what are often lengthy and diffuse submissions that purport to raise numerous issues for determination.

Endnotes

[2016] NSWCA 284.
[2016] NSWCA 49.
[2016] NSWCA 10.
(2011) 81 NSWLR 771; [2011] NSWCA 324 (Teoh (No 4)).
See [66] - [68].
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 (at 247); [1988] HCA 32 per Deane J, quoted in Hamilton v Oades (1989) 166 CLR 486 (at 502); [1989] HCA 21, referred to by Gaudron J in Ridgeway v R (1995) 184 CLR 19 (at 75); [1995] HCA 66.
Bailey v Marinoff (1971) 125 CLR 529 (at 530); [1971] HCA 49 per Barwick CJ, see also (at 539) per Gibbs J; applied in DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17 (at [36], [38]) per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213 (at [70] - [71]) per JC Campbell AJA (McColl and Leeming JJA agreeing).
Burrell v R (2008) 238 CLR 218; [2008] HCA 34 (at [20]).
See Quach (No 3) (at [63]).
Health Care Complaints Commission v Quach [2015] NSWCATOD 2 (disciplinary hearing judgment); Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32 (protective orders judgment).
Quach (No 1) (at [20] - [33]).
Quach (No 3) (at [40]); Mr Quach's persistence in failing to take procedural steps pointed out to him in the course of his proceedings was evident in Quach (No 1) (at [38] - [40]); see also Quach (No 2) (at [33]).
Disciplinary hearing judgment (at [1]).
(at [54]).
Cf Uniform Civil Procedure Rules 2005 (NSW) r 33.2(1).
(1977) 139 CLR 28; [1977] HCA 10 (Yager).
Katter (at [80]).
Quach (No 1) (at [6], [20]).
Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 (at 396) per Hutley JA (Reynolds and Glass JJA agreeing).
R v Skinner (1772) Lofft 54 (at 56); (1772) 98 ER 529 (at 530) per Lord Mansfield; see also Jamieson v R (1993) 177 CLR 574 (at 582); [1993] HCA 48 per Deane and Dawson JJ.
Jamieson v R (at 582).
(1986) 161 CLR 98 (at 106); [1986] HCA 46. 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: 19 October 2016

Health Care Complaints Commission Act 1993(NSW)

Cf Uniform Civil Procedure Rules 2005(NSW)r 33.2(1).

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