This matter has a long history. The background is relevantly set out in Quach v New South Wales Health Care Complaints Commission (No 3) [2016] NSWCA 284 (McColl JA, Macfarlan JA and Sackville AJA agreeing) (Quach (No 3)) (footnotes omitted) as follows:
2. Mr Quach was the subject of proceedings brought by the first respondent, the Health Care Complaints Commission (Commission), in the New South Wales Civil and Administrative Tribunal (NCAT) which led to the cancellation of Mr Quach's registration as a medical practitioner. The disciplinary decision resulted in findings of unsatisfactory professional conduct and professional misconduct being made against Mr Quach. The protective orders decision resulted in orders cancelling Mr Quach's registration as a medical practitioner, preventing him from applying to review the cancellation of his registration for a period of seven years and prohibiting him from providing any health service on a public, private or volunteer basis.
3. By an amended summons dated 12 May 2015, file number 2015/158685 (Court of Appeal proceedings), heard by the Court of Appeal in its supervisory jurisdiction pursuant to s 69 of the SCA, Mr Quach sought to identify jurisdictional error in the NCAT decisions. On 10 February 2016 the Court of Appeal dismissed the amended summons (Quach (No 1)). This judgment is written on the basis that readers are familiar with Quach (No 1).
4. As Meagher JA said in Quach (No 2), the effect of Quach (No 1) is that "the real issues in the proceedings between these parties have been determined". However, "[t]he problem which confronts the Court and the [Commission] is that Mr Quach does not seem prepared to accept that determination."
The subsequent history of this matter is relevantly set out in Quach v New South Wales Health Care Complaints Commission (No 4) [2016] NSWCA 285 (Quach (No 4)) and Quach v New South Wales Health Care Complaints Commission (No 5) [2016] NSWCA 366 (Quach (No 5)).
In Quach (No 4), the Court observed (footnotes omitted) as follows:
1. In Quach v New South Wales Health Care Complaints Commission (Quach (No 3)), 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)):
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.'
2 The jurisprudence underpinning the Teoh Order is discussed in Quach (No 3).
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).
4 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.
In Quach (No 5), after referring to the above history set out in Quach (No 4), the Court observed (footnotes omitted) as follows:
3. In Quach (No 4), pursuant to the directions referred to (at [4]), the Court considered whether any of Mr Quach's 6 June 2016, 26 July 2016 or 16 August 2016 motions should be summarily dismissed as vexatious and an abuse of process, or whether the material filed by Mr Quach warranted a hearing in which any respondent to those motions would participate. The Court held that Mr Quach had not shown cause why any of the motions should not be dismissed as vexatious or an abuse of process. Accordingly, on 19 October 2016 the Court dismissed all three motions.
4. On 26 October 2016 Mr Quach filed a further motion (October 2016 motion). That motion again identifies the Health Care Complaints Commission (Commission), the New South Wales Civil and Administrative Tribunal (NCAT) and the Attorney General as those persons or entities against whom or which the orders are sought.
5. On 27 October 2016 Beazley P directed Mr Quach to file submissions in support of the October 2016 motion, with those submissions also addressing why the Court should not in chambers summarily dismiss the application as being vexatious and an abuse of process.
6. The October 2016 motion seeks first, an order for a review of Meagher JA's decision in Quach (No 2) (Order 1), secondly, an order to "nullify" that decision (Order 2), thirdly, an order to "nullify" the judgment of "McColl J, McFarlan J and Sackville J of the 19 October 2016" (Order 3), and fourthly, orders that the 6 June 2016, 26 July 2016 and 16 August 2016 motions "be heard by the full bench" (Orders 4, 5 and 6).
7. Mr Quach filed written submissions on 28 October 2016. He also included in the motion itself statements in the nature of submissions to support the orders sought.
8. Again, the question to be determined in chambers is whether the October 2016 motion 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 be required to participate.
In Quach (No 5), the Court held that Mr Quach had not demonstrated any reason why his 26 October 2016 motion (the October 2016 motion) should not be dismissed as vexatious and as an abuse of process. Accordingly, the October 2016 motion was summarily dismissed.
[2]
The present motions
Notwithstanding the history set out above, on 19 December 2016 Mr Quach filed a notice of motion (the December 2016 motion) seeking relief which again challenges the decision of Meagher JA in Quach v New South Wales Health Care Complaints Commission (No 2) [2016] NSWCA 49 (Quach (No 2)). Mr Quach also challenges the decisions of this Court in Quach (No 3) and Quach (No 4).
On 15 March 2017, Beazley P directed Mr Quach to show cause why the December 2016 motion should not be dismissed as vexatious and an abuse of process, and directed Mr Quach to file and serve any submissions opposing such an order by 22 March 2017.
On 14 March 2017 Mr Quach filed a further notice of motion (the March 2017 motion) seeking relief based on allegations of contempt of Court against, among others, the Commission and the Attorney-General. He sought relief again challenging the decision of Meagher JA in Quach (No 2) and also the decisions of this Court in Quach (No 4) and Quach (No 5).
On 19 May 2017, Meagher JA directed Mr Quach to show cause why the March 2017 motion should not be summarily determined by the Court in chambers as vexatious and an abuse of process, and directed Mr Quach to file submissions (in accordance with the Teoh Order made by his Honour in Quach (No 2)) by 9 June 2017.
Mr Quach filed submissions dated 20 March 2017 and 1 June 2017 respectively.
The question to be determined by the Court in chambers is whether the December 2016 motion and the March 2017 motion should each 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 be required to participate.
[3]
December 2016 motion
Mr Quach's December 2016 motion seeks the following orders:
an order to "nullify" the judgment of Meagher JA in Quach (No 2) (Order 2);
an order to "nullify" the judgments of McColl JA, Macfarlan JA and Sackville AJA in Quach (No 4) and Quach (No 5) (Order 3);
an order that the notices of motion filed 6 June 2016, 26 July 2016 and 16 August 2016 "be heard by the Full Bench" (Orders 4, 5 and 6).
For the reasons that follow, this motion should be dismissed as vexatious and an abuse of process.
[4]
Order 2
Order 2 of the December 2016 motion seeks to re-agitate matters already determined by the Court. The attempt to "nullify" the decision of Meagher JA in Quach (No 2) ignores that:
1. in Quach (No 3), the Court dismissed Mr Quach's application for review of Meagher JA's decision in Quach (No 2); and
2. in Quach (No 5), the Court dismissed Mr Quach's October 2016 motion which sought the same relief in order 2 challenging the decision of Meagher JA in Quach (No 2), as is sought in order 2 of the December 2016 motion.
There is no merit in the challenge to the decision of Meagher JA in Quach (No 2), having regard to this Court's decisions in Quach (No 3) and Quach (No 5).
[5]
Orders 3, 4, 5 and 6
Orders 3, 4, 5 and 6 of the December 2016 motion seek to re-agitate matters dealt with by this Court in Quach (No 4) and Quach (No 5).
In Quach (No 4), the Court dismissed Mr Quach's motions dated 6 June 2016, 26 July 2016 and 16 August 2016 as vexatious and an abuse of process. In Quach (No 5), the Court dismissed Mr Quach's October 2016 motion as vexatious and an abuse of process.
Insofar as Mr Quach contends that the Court could not deal with the motions of 6 June 2016, 26 July 2016 and 16 August 2016 without first granting a review of Meagher JA's decision in Quach (No 2), and accordingly the decision of this Court in Quach (No 4) is "pre-judgment", that argument is misconceived and hopeless. The motions of 6 June 2016, 26 July 2016 and 16 August 2016 were dealt with by the Court in Quach (No 4) in chambers, pursuant to the Teoh Order and were dismissed by the Court as vexatious and an abuse of process.
No purpose would be served in requiring the respondents to deal with the December 2016 motion. Mr Quach has not shown cause why the December 2016 motion should not be dismissed as vexatious or an abuse of process.
[6]
March 2017 motion
Mr Quach's March 2017 motion seeks the following orders:
An order that the Commission and/or Paul Taylor is guilty of criminal contempt of court, for breach of a court order, by way of "exhaustive undertakings" to the Court of Appeal, before Meagher JA on 29 June 2015 (Order 2);
An order that the Attorney General (as at 16 January 2017, the Hon Gabrielle Upton) and/or solicitor Sylvia Hart is guilty of criminal contempt of court, "for interfering with the administrative (sic) of justice by a solicitor" (Order 3);
An order to "nullify" the judgment of Meagher JA in Quach (No 2) (Order 4);
An order to "nullify" the judgments of McColl JA, Macfarlan JA and Sackville AJA in Quach (No 4) and Quach (No 5) (Order 5);
An order that the notices of motion filed 6 June 2016, 26 July 2016 and 16 August 2016 "be heard by the full bench, pursuant to the Criminal Procedure Act 2009 (NSW)" (Orders 6, 7 and 8).
For the reasons that follow, this motion should also be dismissed as vexatious and an abuse of process.
[7]
Order 2
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.
This contention requires brief reference to the following matters by way of background.
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.
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).
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.
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.
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.
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.
[8]
Order 3
The assertion by Mr Quach that the Attorney General and/or Ms Hart, a solicitor in the employ of the Crown Solicitor's Office, is guilty of criminal contempt is based on the propositon that a letter sent by Ms Hart to the Registrar of the Court of Appeal dated 16 January 2017 "interfered with the administration of justice" because the letter referred to the Teoh Order made by Meagher JA on 21 March 2016, and requested that the December 2016 motion "be dealt with in accordance with the Teoh Order, that the listing date be vacated, and that the notice of motion be referred to a judge".
The return date of the December 2016 motion was 30 January 2017. On 17 January 2017, the Registrar of the Court of Appeal informed the parties, that the return date of the December 2016 motion had been vacated, and the matter referred to the President of the Court of Appeal to determine how the motion should proceed.
Having regard to the terms of the Teoh Order, it was entirely appropriate for the Crown Solicitor's Office to request that Mr Quach's December 2016 motion be dealt with in accordance with the Teoh Order, including that the return date of that motion be vacated and the motion be referred to a judge of this Court.
There is simply no foundation for Mr Quach's characterisation of the letter from the Crown Solicitor's Office to the Registrar of the Court of Appeal dated 16 January 2017 as constituting a criminal contempt of court.
[9]
Orders 4, 5, 6, 7 and 8
Orders 4, 5, 6, 7 and 8 of the March 2017 motion replicate orders 4, 5, 6, 7 and 8 in the December 2016 motion. They are hopeless for the reasons already given concerning the same orders as sought in the December 2016 motion.
[10]
Other matters
The written submissions of Mr Quach dated 20 March 2017 also complained of the decision of the Registrar of the Court of Appeal to vacate the return date of the March 2017 motion. That course was appropriate in view of the Teoh Order. There is no substance in this complaint.
Again no purpose would be served in requiring the respondents to deal with the March 2017 motion. Mr Quach has not shown cause why the March 2017 motion should not be dismissed as vexatious or an abuse of process.
[11]
Mr Quach's further submissions
On 6 July 2017, Mr Quach filed submissions (without leave) dated 5 July 2017 in proceeding 2015/67618. Those submissions were expressed to be directed to the recusal application concerning Sackville AJA in proceedings 2015/48269 and 2015/67618. Although filed in a separate proceeding, those submissions asserted that Sackville AJA must also disqualify himself from this "proceeding 2015/158685 because the appointments in this proceeding and related proceedings is and were invalid, respectively".
Although filed in a separate proceeding, it is appropriate to address this contention insofar as it also concerns this proceeding.
Mr Quach contends 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 the Court to hear and determine the present motions, or earlier proceedings involving Mr Quach, because only the Chief Justice can make such arrangements.
This contention must be rejected.
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.
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.
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.
[12]
Notice to Produce
On 27 June 2017, Mr Quach served a notice to produce on the Attorney-General in this proceeding. The notice to produce, which was returnable on 5 July 2017, sought production of the following documents:
All relevant evidentiary material relating to qualification of Sackville AJ, including but not limited to the original written instrument of appointment/re-appointment as Acting Judge in the Supreme Court Act 1970 (NSW) by the Governor of New South Wales.
On 4 July 2017, the Registrar of the Court of Appeal made the following orders and directions:
1. Vacate the return date for the notice to produce on 5 July 2017.
2. Stand the notice to produce over to a date to be fixed.
3. Applicant to file and serve any submissions in support of the grant of leave under UCPR 34.1 by 11 July 2017.
4. Applicant is granted leave to file those submissions by email.
Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 34.1 provides:
(1) A party may, by notice served on another party, require the other party to produce to the court, or to any examiner:
(a) at any hearing in the proceedings or before any such examiner, or
(a1) at any time fixed by the court for the return of subpoenas, or
(b) by leave of the court, at some other specified time,
any specified document or thing.
Mr Quach requires the leave of the Court under UCPR, r 34.1(b) before serving the notice to produce on the Attorney-General, since the return date of the notice to produce, 5 July 2017, was neither the date of any hearing in the proceedings, or a time fixed by the Court for the return of subpoenas.
No submissions were filed by Mr Quach within the time fixed by the Registrar in support of the grant of leave to serve the notice to produce. Nonetheless, it would appear that the documents sought by Mr Quach relate to the contention in his further submissions dated 5 July 2017, concerning the right of Sackville AJA to hear and determine the present motions and earlier applications by Mr Quach. Since that contention has been rejected, no legitimate forensic purpose would be served by permitting Mr Quach to serve the notice to produce on the Attorney-General.
Leave to serve the notice to produce dated 27 June 2017 directed to the Attorney-General should be refused.
[13]
Should the Court make orders under the Vexatious Proceedings Act 2008 (NSW)?
The problem which confronts the 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.
Having regard to the procedural history in this matter and in related proceedings (see Quach v New South Wales Civil and Administrative Tribunal (No 2) [2017] NSWCA 182), 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.
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 the proceeding in this Court 2015/158685.
Mr Quach should be given an opportunity to make written submissions in opposition to any such proposed orders. The terms of the orders that I would propose are set out below at [58(4)-(7)]. 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].
[14]
Conclusion and Orders
Each of Mr Quach's December 2016 and March 2017 motions should be summarily dismissed as vexatious and an abuse of process.
Orders should also be made giving Mr Quach an opportunity to file any written submissions showing cause as to why orders should not be made under the Vexatious Proceedings Act.
Accordingly, I propose the following orders:
1. Notice of motion filed 19 December 2016 dismissed as vexatious and an abuse of process.
2. Notice of motion filed 14 March 2017 dismissed as vexatious and an abuse of process.
3. Refuse leave to the applicant to serve the notice to produce dated 27 June 2017 directed to the third respondent.
4. Order that Michael Quach, the applicant on the motions filed on 19 December 2016 and 14 March 2017 in proceeding 2015/158685, 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 proceeding 2015/158685 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 proceeding 2015/158685 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.
SIMPSON JA: I agree with Gleeson JA.
SACKVILLE AJA: I agree with the orders proposed by Gleeson JA and with his Honour's reasons.
Insofar as Mr Quach has sought an order that I disqualify myself in these proceedings, I decline to do so. My reasons are the same as those given in Quach v New South Wales Health Care Complaints Commission (No 2) [2017] NSWCA 182.
[15]
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
Quach v New South Wales Health Care Complaints Commission (No 5) [2016] NSWCA 366
Rajski v Wood (1989) 18 NSWLR 512
Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125
Category: Principal judgment
Parties: Michael Quach (Applicant)
NSW Health Care Complaints Commission (First Respondent)
NSW Civil and Administrative Tribunal (Second Respondent)
Attorney-General of NSW (Third Respondent)
Representation: Counsel: Self-represented (Applicant)
N/A (First Respondent)
N/A (Second Respondent)
N/A (Third Respondent)
Judgment
GLEESON JA: Before the Court are two notices of motion filed by the applicant, Mr Michael Quach, in proceeding 2015/158685. The respondents to the motion are identified as the New South Wales Health Care Complaints Commission (Commission), the New South Wales Civil and Administrative Tribunal (NCAT) and the Attorney General of New South Wales (Attorney General).
The motions are directed to challenging earlier decisions of this Court with the ultimate aim of setting aside two decisions of NCAT in February 2015 and April 2015, referred to as the disciplinary or Stage One decision (Health Care Complaints Commission v Quach [2015] NSWCATOD 2) and the protective orders or Stage Two decision (Health Care Complaints Commission v Quach [2015] NSWCATOD 32).