Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal - [2017] NSWCA 267 - NSWCA 2017 case summary — Zoe

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Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal

[2017] NSWCA 267

Court of Appeal (NSW)|2017-09-04|Before: Gleeson JA, Simpson JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2017-09-04

Before

Gleeson JA, Simpson JA

Catchwords

[2000] HCA 48 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531

Source

Original judgment source is linked above.

Catchwords

[2000] HCA 48 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531

Judgment (26 paragraphs)

[1]

Background

A brief outline of the background to the show cause matters is as follows. Mr Quach was a medical practitioner. The subject matter of the proceedings before NCAT involved two notices of complaint lodged against Mr Quach by the Health Care Complaints Commission (the Commission), one in June 2013; the other in January 2014. The Notices of Complaint contained ten separate complaints against Mr Quach, including complaints of professional misconduct, impairment and a lack of sufficient mental capacity, knowledge and skill to practise as a health practitioner. There was a degree of procedural complexity because the dates of the two Notices of Complaint straddled the abolition of the Medical Tribunal of New South Wales and the establishment of NCAT on 1 January 2014. The first Notice of Complaint was lodged with the Medical Tribunal and the second with NCAT.
The proceedings before NCAT were dealt with in two stages: the first may be referred to as the disciplinary or Stage One proceeding; the second may be referred to as the protective orders or Stage Two proceeding.
Mr Quach and the Commission were both legally represented during the disciplinary proceeding. After the final day of argument on 19 December 2014, the Principal Member delivered an ex tempore judgment in which he specified the conditions to be imposed on Mr Quach's licence on an interlocutory basis pending argument and decision in the Stage Two proceeding. On 9 January 2015, the matter was relisted (it appears at the request of the Commission) before the Principal Member, sitting alone. Mr Quach represented himself on that day. Following that hearing, the Principal Member amended the form of the interlocutory conditions.

[2]

The notices of motion

The three notices of motion filed on 8 August 2017 seek substantially the same relief. Paragraph 2 of the motions sought the recusal of the members of the Court allocated to hear the show cause matters as follows: … disqualification of Gleeson, Simpson JJ and the said Ronald Sackville from this proceeding on the ground that Sackville AJA does not hold judicial office pursuant to s 52(1) of the Constitution Act 1902 (NSW). And also sought that: Gleeson Simpson JJ must also disqualify themselves on the grounds of: I. The Statute overrides common law. II. The Judgement (sic) of Quach v New South Wales and Administrative Tribunal (No 2) [2017] NSWCA 182 was a common law decision that sought to override the my (sic) statutory right to issue a proceeding in the New South Wale (sic) Court of Appeal in relation to New South Wales Civil and Administrative Tribunal proceeding number 1420086 and 1420065. III. The Judgement (sic) seeks to review and vary the Court's ruling in Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63 that I have the statutory right to Appeal the decision of Health Care Complaints Commission v Quach in [2015] NSWCATOD 2 and [2015] NSWCATOC 32. IV. There is a real possibility that Gleeson Simpson JJ and the "said Ronald Sackville" would not bring an impartial mind to the resolution of the relevant question.
Paragraph 3 of the motions sought to: Nullify the decisions of the "said Francis Marks" in Health Care Complaints Commission v Quach in [2015] NSWCATOD 2 and [2015] NSWCATOD 32 on the grounds that: I. The "said Francis Marks" does not hold judicial office pursuant to Section 52(1) of the Constitution Act 1902 (NSW). The "said Francis Marks" is not a "senior judicial officer" pursuant to the definition under s 165 of the Health Practitioner Regulation National Law (NSW). The decisions of the "said Francis Marks" in Health Care Complaints Commission v Quach in [2015] NSWCATOD 2 and [2015] NSWCATOD 32 are NULL. II. Nullify the decisions of the "said Ronald Sackville" in: i. Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63 ii. Quach v New South Wales Civil and Administrative Tribunal (No 2) [2017] NSWCA 182 iii. Quach v Health Care Complaints Commission (No 6) [2017] NSWCA 183 on the grounds that "said Ronald Sackville" does not hold judicial office to be appointed to the bench under Section 39 of the Supreme Court Act 1970 (NSW).
In addition, paragraph 3 of the motion filed in proceeding 2015/158685 also sought to: Nullify the decisions of the "said Ronald Sackville" in Quach v Health Care Complaints Commission (No 3) [2016] NSWCA 284 and Quach v Health Care Complaints Commission (No 4) [2016] NSWCA 285 on the ground that Sackville AJA does not hold judicial office.
Paragraph 4 of the motions sought an order that certain notices of motion were "outstanding and must be heard in a proper oral hearing pursuant to the Criminal Procedure Act 1986 (NSW)" on the ground that "the Civil Procedure Act 2005 (NSW) does not apply in the Health Practitioner Regulation National Law 2009 (NSW) pursuant to ss 242 and 243". The relevant notices of motion in the proceedings were:

2015/48269 - notice of motion dated 2 May 2017;
2015/67618 - notices of motion dated 18 April 2017, 9 May 2017 and 13 June 2017; and
2015/158685 - amended notice of motion dated 30 November 2015 and notices of motion 28 January 2016, 1 March 2016, 21 March 2016, 26 July 2016, 26 October 2016, 19 December 2016 and 14 March 2017.

[3]

Mr Quach's submissions

Mr Quach's written submissions, filed on 8 August 2017, only briefly dealt with the show cause matters and were mainly directed to the recusal applications. He contended that:

Sackville AJA does not hold "judicial office" within the meaning of Constitution Act 1902 (NSW), s 52(1) and therefore cannot be appointed to the bench under Supreme Court Act 1970 (NSW), s 39. That is said to have the consequence that: 1. the decisions of this Court (Gleeson JA, Simpson JA and Sackville AJA) in Quach v New South Wales Civil and Administrative Tribunal (No 2) [2017] NSWCA 182 (Quach v NCAT (No 2)) and Quach v New South Wales Health Care Complaints Commission (No 6) [2017] NSWCA 183 (Quach (No 6)) are both "invalid" and that Sackville AJA must disqualify himself from further proceedings; 2. Sackville AJA should disqualify himself as a member of this Court on the present hearing;
the Court does not have power to make a vexatious proceedings order because: 1. the Court ruled in Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63 that Mr Quach has a "statutory right to appeal" against the decisions of NCAT and that this ruling "cannot be varied"; 2. the Court may not make a vexatious proceedings order in relation to a person without hearing the person, or giving the person an opportunity of being heard, pursuant to Vexatious Proceedings Act 2008 (NSW), s 8(3);
Gleeson JA and Simpson JA should disqualify themselves on the grounds of apprehended bias because they have refused to conduct a proper hearing and sought to enforce a vexatious proceedings order without an oral hearing.

In oral argument, Mr Quach advanced the following additional contentions directed to the recusal applications. First, he submitted that the definition of "judicial office" in s 52 of the Constitution Act 1902 (NSW) does not include a person appointed to act as a Judge and a Judge of Appeal pursuant to s 37 of the Supreme Court Act 1970 (NSW). Accordingly, the argument ran, the intra-curial arrangements pursuant to s 39(1) of the Supreme Court Act by which the President of the Court of Appeal nominated or allocated Sackville AJA to be a member of this Court to hear and determine the "show cause" matters, and Mr Quach's further notices of motion "cannot be used to appoint Sackville AJA to this proceeding".
Second, that the amendment in 1990 of the Supreme Court Act which introduced s 37(4A) is "contentious and probably invalid" because s 52 of the Constitution Act dealing with the definition of "judicial office" was "only added in 1992". It was submitted that there are issues of validity for the appointment of judges to act as a Judge of the Supreme Court or as a Judge of Appeal beyond the age of 72.

[5]

The recusal applications

Mr Quach's submissions with respect to the recusal applications disclose a number of misapprehensions and errors.
First, the contention that Sackville AJA "does not hold judicial office" is misconceived. Part 9 of the Constitution Act, which was introduced by the Constitution (Amendment) Act 1992 (NSW), is headed "The judiciary", and deals with the definition of "judicial office" (s 52), removal from judicial office (s 53), suspension from judicial office (s 54), retirement (s 55) and abolition of judicial office (s 56). The explanatory note to the Constitution (Amendment) Bill 1992 stated that the objects of the Bill included to secure the independence of the judiciary and that: Proposed Part 9 enhances the independence of judicial officers. Judicial officers are defined in the Part so as (in effect) to include the judicial officers covered by the Judicial Officers Act 1986.
The expression "judicial officer" is defined in s 52(1)(a) of the Constitution Act to include, relevantly, any of the following: Chief Justice, President of the Court of Appeal, Judge of Appeal, Judge, Associate Judge or Master of the Supreme Court.
Section 55 of the Constitution Act deals with retirement of judicial officers and provides: (1) This Part does not prevent the fixing or a change of age at which all judicial officers, or all judicial officers of a court, are required to retire by legislation. (2) However, such a change does not apply to a judicial officer holding office when the change takes effect, unless the judicial officer consents.
Part 2, Div 2 of the Supreme Court Act deals with the appointment generally of judges of the Supreme Court. Part 2, Div 3 deals specifically with the appointment of Judges of Appeal; and Pt 2, Div 4 deals with the appointment of acting judges and additional Judges of Appeal. Sections 36 and 37 of the Supreme Court Act, which is in Div 4, relevantly provides: Section 36 … (4) The fact that any Judge sits and acts as an additional Judge of Appeal shall be sufficient evidence of the Judge's authority to do so, and no judgment or order of the Court of Appeal while the Judge so acts shall be questioned on the ground that the occasion for the Judge's so acting had not arisen or had ceased to exist. (5) Every Judge who, pursuant to this section, has acted as an additional Judge of Appeal may attend the sittings of the Court of Appeal for the purpose of giving judgment in, or otherwise completing, any proceedings which have been heard by that Court while the Judge so acted, notwithstanding that the Judge is no longer an additional Judge of Appeal. Section 37 (1) The Governor may, by commission under the public seal of the State, appoint any qualified person to act as a Judge, or as a Judge and a Judge of Appeal, for a time not exceeding 5 years to be specified in such commission. (2) In subsection (1) qualified person means any of the following persons: …, (b) a person who is or has been a judge of the Federal Court of Australia, …. (3) A person appointed under this section shall, for the time and subject to the conditions or limitations specified in the person's commission, have all the powers, authorities, privileges and immunities and fulfil all the duties of a Judge and (if appointed to act as such) a Judge of Appeal. (4A) A retired judge of the Federal Court of Australia or of the Supreme Court of another State or Territory may be so appointed even though the retired Judge has reached the age of 70 years (or will have reached that age before the appointment expires), but may not be so appointed for any period that extends beyond the day on which he or she reaches the age of 77 years. … (6) The provisions of section 36 (4) and (5) apply to an acting Judge who acts as a Judge of Appeal in the same way as they apply to a Judge who acts as an additional Judge of Appeal.
There is no issue that Sackville AJA (who was formerly a judge of the Federal Court of Australia) is qualified and has been appointed to act as a Judge and a Judge of Appeal of this Court: Supreme Court Act, s 37(2)(b) and (4A). The effect of the above provisions, in particular, Supreme Court Act, s 36(4) when read together with s 37(6), is that no judgment or order of this Court in which Sackville AJA is a member of the Court may be questioned on the ground that he was not entitled to sit and act, relevantly, as a Judge of Appeal.
Second, there is no merit in Mr Quach's contention that Supreme Court Act, s 37(4A), which relevantly provides that a retired judge of the Federal Court of Australia may be appointed to act as a Judge and a Judge of Appeal, even though he or she has reached the age of 70 years, but may not be appointed for any period that extends beyond the day on which he or she reaches the age of 77 years, is invalid. In particular, there is no inconsistency or tension, relevantly, between the Supreme Court Act, s 37(4A), and the Constitution Act, s 55(1), which provides that Pt 9 of the Constitution Act does not prevent the fixing or a change of age at which all judicial officers, or judicial officers of a court, are required to retire by legislation.
Further, as explained in Quach v NCAT (No 2) at [48]-[50], Mr Quach cannot challenge the Court's intra-curial arrangements as provided for by Supreme Court Act, s 39(1). That is, he cannot challenge the right or power of a particular judge to hear and determine a case to which he, the litigant, is a party: Rajski v Wood (1989) 18 NSWLR 512 at 526 (Hope AJA) and 523 (Priestley JA).
Third, the contention that Quach v NCAT (No 2) is a "common law" decision that sought to override Mr Quach's statutory right to challenge decisions of NCAT, proceeds upon a misapprehension that the decision in Quach v NCAT (No 2) is inconsistent with, or otherwise denies, Mr Quach's statutory right of appeal to the Supreme Court from the decisions of NCAT on a question of law as of right, and a right of appeal by leave on any other ground.
As this Court explained in Quach v NCAT (No 1) at [49], Mr Quach's right of appeal to the Supreme Court arises under the Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, Pt 6, cll 29(1)(d), 29(2)(b) and 29(4)(b). It should be observed that despite the statutory appeal procedure having been drawn to Mr Quach's attention on a number of occasions, both by the Commission and this Court (see [51] and [60] below), Mr Quach has not sought to appeal from the Stage One decision or the Stage Two decision on a question of law, or sought leave to appeal on any other ground. Of course, any such appeal or application for leave to appeal (as the case may be) would now be well out of time, and would require an extension of time from this Court: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 51.16(1)(c) and 51.16(2) in relation to an appeal, and rr 51.10(1)(b) and 51.10(2) in relation to an application for leave to appeal.
Fourth, the assumption by Mr Quach that a vexatious proceedings order might be made by the Court without affording him an opportunity to be heard (see Vexatious Proceedings Act, s 8(3)), misunderstands the orders and directions made by this Court on 25 July 2017 which provided that in addition to the opportunity to file written submissions in opposition to the foreshadowed vexatious proceedings order, Mr Quach could request an oral hearing of the show cause matters. In his written submissions dated 8 August 2017, Mr Quach sought an oral hearing and that has been afforded to him. He has not been denied procedural fairness.
Turning to the recusal application directed to myself, the basis of this application is said to be that there is a real possibility that I would not bring an impartial mind to the resolution of the present question, because "[t]he statute overrides common law" and I was a member of the Court that decided Quach v NCAT (No 2), which, as already mentioned, Mr Quach considers is inconsistent with, or otherwise denied, his statutory right of appeal to the Supreme Court arising under the Civil and Administrative Tribunal Act. As explained above, that submission involves a misapprehension of the decision in Quach v NCAT (No 2).
The test for recusal is whether a fair-minded lay person, with knowledge of the matters relied upon by the applicant, might consider that I might not carry out my judicial functions as a member of the Court dispassionately and impartially: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]-[13].
I am satisfied that such a person would not reach that conclusion based on my participation in the decision in Quach v NCAT (No 2) which, as I have said, did not doubt or deny Mr Quach's statutory right of appeal to the Supreme Court on a question of law, and a right of appeal by leave on any other ground arising under the Civil and Administrative Tribunal Act.

[6]

Notice to produce

After the oral hearing had concluded on 4 September 2017, Mr Quach served a notice to produce dated 21 September 2017 on the Crown Solicitor's Office, which was returnable on 28 September 2017. The notice to produce was directed to the Attorney General for New South Wales and sought production of: All Commissions by the NSW Governor for the "said Ronald Sackville" to act as a judge in the Supreme Court of New South Wales.
On 27 September 2017, the Registrar of the Court of Appeal made orders vacating the return date for the notice to produce, stood the notice over to a date to be fixed, and directed Mr Quach to file and serve any submissions in support of the grant of leave to issue the notice under UCPR, r 34.1(b) by 4 October 2017.
In his submissions filed on 28 September 2017, Mr Quach contended that the Registrar of the Court of Appeal is not a "senior judicial officer" pursuant to the definition in s 165 of the National Law and cannot make any direction or orders in this matter and therefore his decision to refer the notice to produce to this Court is "null".
There is no merit in Mr Quach's submission doubting the Registrar's power to refer the notice to produce to this Court. His argument involves a repetition of the argument advanced in support of his 13 June 2017 motion which was dealt with and rejected by this Court in Quach v NCAT (No 2) for the reasons given at [32]-[37]. It is unnecessary to repeat those reasons here.
UCPR r 34.1 relevantly 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.
Here, the notice to produce could not be issued by Mr Quach without the leave of the Court under UCPR, r 34.1(b) since the return date of the notice to produce, 28 September 2017, was not the date of any hearing in the proceedings, or a time fixed by the Court for the return of subpoenas.
Leave to issue the notice to produce should be refused. First, the hearing of the notices of motion directed to the recusal of Sackville AJA has concluded. Second and importantly, since the contention that Sackville AJA does not hold judicial office has been rejected, no legitimate forensic purpose would be served by permitting Mr Quach to serve the notice to produce on the Attorney-General. Third, the notice to produce is vexatious because leave to serve a notice to produce in similar terms dated 27 June 2017 was refused by this Court in similar circumstances in Quach (No 6).
I now turn to the show cause matters and whether a vexatious proceedings order should be made against Mr Quach.

[8]

The first judicial review application

On 11 February 2015, Mr Quach, without legal assistance, filed a summons in the Common Law Division of the Supreme Court, being a proceeding that came to be designated 2015/48269. That summons listed NCAT and the Commission as respondents. Mr Quach filed a second summons on 25 February 2015 (proceeding 2015/67618) and by notice of motion on the same day, sought the same relief in proceeding 2015/48269 as was sought in the second summons. The second summons named the Commission as sole respondent. Both summonses were removed to the Court of Appeal. Mr Quach sought relief in the nature of judicial review of NCAT's Stage One decision and the interlocutory orders made on 19 December 2014, and 9 January 2015, as amended as follows:

"Nullity" and removal of the matters before NCAT, "on the grounds that the defendants are acting ultra vires";
Removal of the interlocutory conditions placed on Mr Quach's licence;
A "prohibition order in relation to [Mr Quach]".

Although not clearly expressed, the basis for the relief claimed by Mr Quach was that:

the conditions imposed on Mr Quach's licence on an interlocutory basis were beyond the power conferred on NCAT by reason of certain provisions of the Health Practitioner Regulation National Law 2009 (NSW);
Mr Quach had been denied procedural fairness because he had not been given an opportunity to argue against the imposition of the interlocutory conditions.

On the hearing of the two summonses, Counsel for the Commission fairly acknowledged that there may have been an irregularity in the course taken by the Principal Member in amending the interlocutory orders on 9 February 2015, while sitting alone. Counsel then appearing for Mr Quach had not suggested to the Principal Member on 19 December 2014 that he could not take the course he had proposed to take.
On 24 March 2015, this Court (Sackville AJA, Basten JA and Ward JA agreeing) declined to grant the relief sought by Mr Quach: Quach v NCAT (No 1). The Court held that there were powerful discretionary reasons tending against the grant of relief, in particular:

The failure of counsel for Mr Quach to raise the potential defect in power before the Principal Member;
The validity of the interlocutory orders would shortly be rendered moot by the hearing and determination of the Stage Two proceeding, which would result either in final orders or the end of the interlocutory regime;
There was a statutory procedure for appeals against both the interlocutory orders and any final orders imposed by NCAT, which Mr Quach had chosen not to invoke, instead choosing to proceed pursuant to Supreme Court Act, s 69.
Removal of the changes to the interlocutory regime made by the Principal Member would not leave Mr Quach with an unconditional licence, as the conditions imposed by NCAT on 19 December 2014 would remain in place.

Accordingly, the first and second summonses and accompanying notices of motion were dismissed.
The reasons of the Court in Quach v NCAT (No 1) brought to Mr Quach's attention the right of appeal against any final orders of NCAT on any question of law as of right, and on any other question with the leave of the Court under Civil and Administrative Tribunal Act, Sch 5, Pt 6, cl 29: at [49] and [51]. Clause 29 also includes provision for appeals against interlocutory decisions, subject to the leave of the Court.
On 13 August 2015, the High Court dismissed two applications by Mr Quach for special leave to appeal from the judgment and orders of this Court in Quach v NCAT (No 1): Quach v New South Wales Civil and Administrative Tribunal & Anor; Quach v Health Care Complaints Commission [2015] HCASL 131.

[10]

The 2015 decisions of Meagher JA

After commencing that proceeding, Mr Quach filed a number of notices of motion in proceeding 2015/158685. Two of those notices of motion were determined by Meagher JA on 8 July 2015, in the referrals list: Quach v Health Care Complaints Commission [2015] NSWCA 187. A costs judgment, also determined by Meagher JA, followed: Quach v Health Care Complaints Commission [2015] NSWCA 311.
In the two notices of motion determined by Meagher JA on 8 July 2015, Mr Quach sought the following orders:

"A stay of decision by Acting Judge Frank Marks of the NSW Civil and Administrative Tribunal";
"An extension of time for appeal for merits review of decision by Acting Judge Frank Marks and New South Wales Civil and Administrative Tribunal, until all judicial reviews have concluded in the New South Wales Court of Appeal and High Court of Australia and 28 days after that, be granted";
that the Stage One and Stage Two decisions of NCAT be declared void;
that Mr Quach be provided with a transcript of the proceedings before NCAT;
that Mr Quach be registered unconditionally as a medical practitioner.

Both notices of motion were dismissed with costs, and orders were made to facilitate the Commission seeking an order for the payment of costs on an indemnity basis.
In his judgment, Meagher JA noted that the Stage One and Stage Two decisions could not be declared void on an interlocutory application without a final determination of the 12 May 2015 summons. His Honour also noted that the Court could not register Mr Quach unconditionally as a medical practitioner in judicial review proceedings directed to quashing orders made by NCAT, citing Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [110]. Meagher JA also noted that a transcript of the proceedings before NCAT had been provided to Mr Quach.
Meagher JA declined to grant a stay for three reasons:

The order cancelling Mr Quach's registration was executed immediately, such that Mr Quach's name was removed from the Register of Medical Practitioners on 24 April 2015, three days after the Stage Two proceeding was determined. As such there was no continuing operation of the order that Mr Quach sought to stay;
The serious nature of the findings against Mr Quach and the public interest in ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are allowed to be registered, meant that it was an inappropriate occasion to exercise discretion in favour of the grant of a stay, even if the order had continuing operation;
That there was a statutory procedure for the determination of an appeal, as was referred to by Sackville AJA in Quach v NCAT (No 1), would have tended against the grant of a stay, as would the fact that an appeal pursuant to that procedure would not have affected the operation of the decision before the determination of any such appeal;

Meagher JA noted the following further factors that tended against the grant of relief sought by Mr Quach:

If what Mr Quach called "merits review" was to be understood as the statutory appeal procedure, Mr Quach had not identified any grounds of appeal on which he intended to rely in a draft notice of appeal and had therefore not allowed the Court to properly address the question of whether to grant leave: UCPR, rr 51.10, 51.12;
As more than 28 days had passed since the judgment in the Stage Two proceeding, Mr Quach would require an extension of time to file such a summons, and such an application should be accompanied by evidence which explained the reasons for the delay: UCPR, r 51.10(2).
Mr Quach had wrongly assumed that judicial review pursuant to Supreme Court Act, s 69 should be pursued before any rights of appeal, when the opposite was true. Failure to pursue the statutory appeal process was a reason to refuse any relief by way of judicial review.

Meagher JA also noted that Mr Quach had been directly told of his right to pursue an appeal within the statutory appeals procedure on the following separate occasions:

By letter dated 14 May 2015, two days after Mr Quach's summons was filed, the Commission drew Mr Quach's attention to the statutory appeals procedure;
On 15 June 2015, during a directions hearing for the matter, the Registrar of the Court of Appeal explained to Mr Quach that there was a statutory appeals procedure and that its existence was a discretionary reason to refuse relief by way of judicial review;
By further letter dated 18 June 2015, the Commission noted that despite the urging of the Registrar, Mr Quach had indicated that he was pursuing judicial review deliberately and was not prepared to proceed by way of a statutory appeal. The Commission offered to consent to Mr Quach filing a notice of appeal out of time if he did so pursuant to the statutory appeal procedure by 26 June 2015. The Commission put Mr Quach on notice that it would oppose any such application after that date.

[11]

The determination of the further judicial review application

On 10 February 2016, this Court (Leeming JA, McColl JA and Meagher JA agreeing) declined to grant the relief sought by Mr Quach by way of judicial review of NCAT's Stage One and Stage Two decisions: Quach (No 1).
In his amended summons filed 12 May 2015, Mr Quach raised six grounds. The ordering of the grounds reflects the order in which the Court dealt with them in Quach (No 1):

Marks ADCJ was not a true member of NCAT at the time of the hearings before NCAT or the NCAT decisions, whether by reason of invalidity of appointment, or incompatibility between the positions of acting judge of the District Court and member of NCAT; and had acted "dishonestly" in so acting (Ground 1);
Marks ADCJ was conflicted by his advertisement of his services as an arbitrator and mediator, which was said to be incompatible with his service as an acting judge of the District Court, and advertising that he was a "retired judge" constituted "dishonesty in his trade" (Ground 6);
there had been a lack of natural justice in the proceedings before NCAT and the members had been biased because they had preferred the evidence of the experts called by the Commission over that called by Mr Quach when (a) deciding a complaint that Mr Quach had displayed poor clinical judgment in prescribing a vaccine that was not recommended in clinical guidelines for women as old as the relevant patient; and (b) in making a finding that Mr Quach suffered from narcissistic personality disorder (Ground 2).
a member of the NCAT panel had questioned two witnesses so actively that his conduct amounted to "altering" or "tampering" with the evidence of those witnesses (Ground 3);
NCAT had erred by failing to accept the evidence of a neurologist called by Mr Quach where it conflicted with the evidence of a general practitioner called by the Commission (Ground 4);
NCAT allowing amendments to be made by the Commission to the orders it sought constituted or indicated variously (a) a contempt of orders earlier made; (b) a lack of procedural fairness; (c) apprehended bias or otherwise improper conduct (Ground 5). Ground 5 in the amended summons was entirely consequent upon the other grounds, but Mr Quach expanded into the matters here outlined in written and oral submissions.

All six grounds were rejected by the Court in Quach (No 1). It is not necessary to set out the detail of the Court's reasoning. It is sufficient to note the following. In relation to Ground 1, the Court found: [33]… There was not a skerrick of evidence to which [Mr Quach] pointed suggesting that Judge Marks could ever have been under the slightest doubt as to the validity of his appointment. The submission should never have been made.
In relation to Ground 6, the Court found (citations omitted): [34] … It is clear law that the bare assertion of a conflict of interest "will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated"… [36] Again, this is a submission that should not have been made. There is nothing false in Judge Marks advertising that he was a retired judge... [37] I see nothing incompatible with an acting judge of the District Court being retained, at times when his or her services are not required by the District Court, as an arbitrator or mediator (both of which are means of resolving litigation long recognised by the rules of court).
In relation to Ground 2, the Court found that "there was nothing in [Mr Quach's] complaint", and that Mr Quach's submissions on this ground were "inapt" and "ill-founded": at [45]-[51].
Ground 3 was related to Ground 2 as it was directed to the questioning by the panel member, Dr Giuffrida, of the experts who gave evidence in relation to the finding that Mr Quach suffered from a narcissistic personality disorder. Similarly to Ground 2, the Court found that "there is nothing in this ground": at [53].
Mr Quach submitted, in relation to Ground 4, that NCAT had "ignored" the report of a neurologist that he had tendered (over objection by the Commission). This submission was said by the Court to be "plainly" wrong, and Ground 4 was rejected as disclosing no error on the part of NCAT: at [58].
Ground 5 was rejected, as the Court found that there was no improper conduct in any of the respects alleged by Mr Quach: at [59]-[69].
While the Commission urged the Court to refuse relief by way of judicial review on discretionary grounds because of Mr Quach's perseverance in seeking that remedy despite repeatedly being told that there was a more appropriate statutory appeal procedure, the Court dealt with the substantive matters about which Mr Quach complained. As Leeming JA explained in Quach (No 1): [72] I have taken the course of addressing the substance of the matters of which [Mr Quach] complains on their merits, rather than relying upon the entirely unexplained reliance by [Mr Quach] on judicial review rather than the appeal provided by statute, in light of the fact that the parties have exchanged full written and oral submissions on those grounds. In so doing, I am not to be taken to be disagreeing with the force of what was said by earlier courts about the susceptibility of [Mr Quach's] summons to dismissal on a discretionary basis. To the contrary, I respectfully agree with what has been said.

[12]

Mr Quach's further notices of motion

Prior to the hearing of Mr Quach's further judicial review application (on 3 February 2016), Mr Quach filed a number of further notices of motion, seeking the following relief:

Restoring the order of respondents in which Mr Quach had instituted the proceeding so that NCAT would be first respondent and the Commission would be second respondent (motion filed 21 October 2015);
Challenging the decision of a Registrar to refuse leave to amend the notice of motion filed 21 October 2015 (in relation to other grounds that it contained) because, Mr Quach argued, that Registrar had purported to review the decision of another Registrar (motion filed 8 December 2015);
Seeking orders against the Director of Proceedings for the Commission, Ms Karen Mobbs (motion filed 28 January 2016);
Seeking judicial review of a decision of the Professional Standards Committee dated 31 October 2011 (motion filed 28 January 2016).

These motions were also determined by the Court in Quach (No 1). The first of these motions was directed to the fact that an order was made listing NCAT as the second respondent because it had filed a submitting appearance, whereas the Commission was an active defendant and was thus made first respondent. Mr Quach could not point to any consequence that reinstating the order in which the respondents were originally listed would have on the proceeding, and the paragraph of the 21 October 2015 motion that sought this relief was dismissed.
The Court's rejection of the other relief sought by Mr Quach in these notices of motion requires a little more explanation. By paragraph 3 of the notice of motion filed 21 October 2015, Mr Quach purported to apply for judicial review of a decision of the Medical Board dated 23 September 1999. On 2 November 2015, upon the application of the Attorney-General, the Registrar directed Mr Quach to apply for the requisite extension of time to ventilate that complaint and to supply evidence supporting the application by 30 November 2015. In response to that direction, Mr Quach filed an amended notice of motion which made a series of attacks upon the 1999 decision of the Medical Board, a report of the Medical Board dated 4 February 1999, as well as the unrelated conduct of the Commission and its barrister in relation to Mr Quach's proceedings before the Court of Appeal. No evidence was filed to support the grant of an extension of time.
The amended notice of motion was considered by another Registrar on 7 December 2015. That Registrar refused leave to amend the 21 October 2015 motion and rejected the document pursuant to UCPR r 4.10(4). Mr Quach challenged that decision in his 8 December 2015 notice of motion on the ground that it constituted an impermissible review of the directions of the Registrar given on 2 November 2015. That argument and the 8 December 2015 notice of motion were rejected by the Court for the following reasons in Quach (No 1): [15] It is perfectly plain that the Registrar on 7 December 2015 was not purporting to review the directions made by a different Registrar on 2 November 2015. Instead, he was dealing with a situation where [Mr Quach] had not complied with a direction to supply evidence and had purported to expand, by way of amended notice of motion, what had been before the Registrar on 2 November 2015, including making serious claims against, and seeking orders against, non-parties. No error has been shown by [Mr Quach] in the course taken by the Registrar on 7 December 2015.
Mr Quach made similarly serious claims and sought orders against non-parties - relevantly, Karen Mobbs of the Commission and members of the Professional Standards Committee who had given a decision dated 31 October 2011 - in the 28 January 2016 notice of motion. The Commission objected to the Court hearing the notice of motion. The Court refused to hear that motion because of the non-joinder of affected parties and the inappropriate manner in which Mr Quach sought to ventilate his complaint. It is useful to set out the relevant passages of the reasons of the Court in Quach (No 1): [17] … the Court stated that [Mr Quach] would not be permitted to be heard on that motion at the hearing, with reasons to follow when judgment was delivered… It should be noted that by his motion [Mr Quach] makes serious allegations against members of the Professional Standards Committee, including denial of natural justice, conflicts of interest and "entrapment". It ought to have been plain to [Mr Quach], who is well-educated and no stranger to litigation, that allegations of that nature could not be raised late in the day, by notice of motion, without joining the persons who are alleged to have failed to comply with their obligations. [18] … I propose that [the notice of motion] be listed for directions at a time to be fixed before the Registrar. On that occasion, [Mr Quach] should advise what course he wishes to take in respect of it. It should not be thought by [Mr Quach] that the two matters on which I have relied in my decision not to hear him on the motion are the only obstacles he faces in any attempt (a) to challenge the decision of a body made more than five years ago from whose decision there was a right of appeal and (b) to challenge the conduct made by a particular officer of the Commission to the extent, if any, she was involved in steps taken in response to litigation brought by him in this Court in 2015. He would be well-advised to seek legal advice as to the viability and utility of those proposed challenges before taking any further step.

[13]

Quach (No 2) and the "Teoh Order"

Proceeding 2015/158685 next came before Meagher JA on 9 March 2016, for hearing of five notices of motion - three filed by Mr Quach and two by the Commission. The second of the two motions filed by the Commission sought an order similar to that made by this Court in Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324. In addition to these five motions, Meagher JA also dealt with a document that Mr Quach purported to "re-file" with the Court in the circumstances outlined below. His Honour gave judgment on 21 March 2016: Quach v Health Care Complaints Commission (No 2) [2016] NSWCA 49 (Quach (No 2)).
Meagher JA rejected a preliminary argument by Mr Quach that his motions must be heard before three judges of the Court of Appeal. His Honour noted that none of the orders sought in the motions involved the determination of the proceedings for judicial review and therefore may be dealt with by a single Judge of Appeal.
Of the three motions filed by Mr Quach, two remained for determination subsequent to the decision of the Court of Appeal in Quach (No 1), being: 1. paragraph 3 of the 21 October 2015 motion seeking judicial review of the 1999 decision of the Medical Board and a declaration that that decision was void, which had not been determined after the Registrar rejected Mr Quach's application to amend it; and 2. the 28 January 2016 motion which sought orders against non-parties, Ms Karen Mobbs and certain members of the Professional Standards Committee.
Mr Quach had also filed a notice to produce on 22 February 2016 in relation to these two motions. One of the two orders sought by the Commission in the first of its two motions (filed 4 March 2016) was that the notice to produce be set aside.
Paragraph 3 of Mr Quach's 21 October 2015 motion was dismissed by Meagher JA for the following reasons:

The application could not be brought by way of motion in the existing proceedings; instead, it should have been commenced in separate proceedings by way of summons accompanied by supporting documentation;
The Tribunal or other body which made the decision, or at least a party representing that body must be joined as a defendant if orders were to be made against them;
Assuming the claim otherwise had merit, there were fundamental difficulties associated with it, including that the decision was over 16 years before Mr Quach sought to review it; that the conditions imposed on Mr Quach's licence following the Medical Board's decision long ago ceased to have any continuing effect; and Mr Quach did not pursue his right to appeal to the Medical Tribunal against the Medical Board's decision.

Meagher JA dismissed Mr Quach's 28 January 2016 motion for substantially similar reasons to those his Honour gave in dismissing paragraph 3 of the 21 October 2015 motion: the claims were not made in accordance with the UCPR and none of the necessary parties had been joined; Mr Quach had made serious allegations without evidence; in part, the subject matter of the complaints was Ms Mobbs' conduct with regard to the proceedings before NCAT, and Mr Quach's challenge to those proceedings by way of judicial review had been dismissed; and Mr Quach had not exercised the statutory appeal process available to him against the unrelated decision of the Professional Standards Committee from October 2011.
Both of the motions to which Mr Quach's 22 February 2016 notice to produce was directed were dismissed. As a result, the notice to produce was also dismissed.
The third of Mr Quach's motions (filed 1 March 2016) that was determined by Meagher JA in Quach (No 2) made three claims to relief as follows:

"Judicial review" of the decision in Quach (No 1);
a stay of the Stage One and Stage Two decisions of NCAT;
"Removal of… all conditions of registration".

The Commission sought an order in its 4 March 2016 motion that Mr Quach's 1 March 2016 motion be dismissed. Meagher JA made that order for the following reasons:

the Court had no jurisdiction to grant judicial review of the decision in Quach (No 1);
there were no orders of NCAT that had a continuing operation and could therefore be stayed;
Mr Quach's registration was not conditional, it had been cancelled;
there was nothing to suggest a basis for the grant of relief against the Stage One and Stage Two decisions of NCAT nor the decision of the Court of Appeal in Quach (No 1).

The circumstances of the "re-filed" document were as follows. On 16 February 2016 Mr Quach attempted to file a notice of motion in identical terms to that which the Registrar and the Court of Appeal had previously dismissed: see [73] above. Mr Quach sought to move on that motion before Meagher JA on the basis that the document had been stamped "received" by the registry and had not otherwise been dealt with by the Court. Meagher JA ordered that Mr Quach's "re-filed" document not be accepted for filing and held that his attempt to file it "was plainly contrary to the intent and effect of the Registrar's order which was expressly upheld by this Court": Quach (No 2) at [21].
The Commission's second motion, filed 22 February 2016, sought an order that Mr Quach not file any further document in proceeding 2015/158685 without the leave of a judge or registrar of the Court. Meagher JA made such an order based on the Court's inherent power to control its own processes. Much of the proceedings involving Mr Quach since this order was made have involved application of, or challenge to, this order (known as a Teoh order), and it is useful to set out his Honour's reasoning in Quach (No 2) in full: [28] … the real issues in the proceedings between these parties have been determined and Mr Quach's amended summons dismissed. The problem which confronts the Court and the respondent is that Mr Quach does not seem prepared to accept that determination. [29] In the course of oral argument the parties were referred to the decision of this Court (Handley AJA, Allsop P and Beazley JA agreeing) in Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324; 81 NSWLR 771. There it was held that in the exercise of its inherent power, the Court may act of its own motion to prevent a potential abuse of its process. Mrs Teoh sought to appeal from a decision of the Land and Environment Court. She required leave to do so. She failed three times to persuade this Court that she had arguable grounds for leave. In those circumstances, Handley AJA observed at [32]: The Court however has a duty to conserve its resources and ensure as far as possible that they are available for other litigants. It is therefore entitled to protect itself and its proceedings from abuse by a litigant who may wish to make a fourth application for the same relief. [30] Acting of its own motion, the Court directed the Registrar to promptly vacate the return date of any further motion filed by Mrs Teoh seeking in substance the same relief; to notify the parties; and to refer the papers to a Judge nominated by the President to determine, in chambers, whether the Court should fix a new return date or whether Mrs Teoh should be invited to show cause in writing why the Court should not in chambers summarily dismiss the further application as vexatious and an abuse of process. [31] In oral argument the Commission submitted that Mr Quach's continued attempts to broaden the scope of the subject matter of his application for judicial review, which was dealt with in this Court's judgment of 10 February 2016, constitute an abuse of process. It sought an order of the kind made in Teoh, not only to protect the Court and its process from abuse, but also to avoid unnecessary expenditure of financial and human resources on its part. … [33] Since that second judgment was delivered, Mr Quach has sought to re-file the amended notice of motion of 30 November 2015 (see [18] above), filed the notice of motion of 1 March 2016 (see [14] above) and continued to press his notice of motion of 28 January 2016 (see [11] above). That has occurred notwithstanding the many indications he has received that further claims for substantive relief by way of judicial review could not be brought by notice of motion in proceedings 2015/158685 (see for example, [2016] NSWCA 10 at [16]-[18]). [34] I am satisfied that it is likely Mr Quach will continue to make such applications. In his oral argument, Mr Quach asserted that he was entitled in these proceedings to continue to raise and press "in the interests of justice" the arguments which he has sought to make concerning challenges to conduct or decisions which preceded the decisions of NCAT on the basis that they contributed in some way to the outcome of those proceedings before NCAT. Furthermore, in his written submission to this Court, Mr Quach maintained that he "will not terminate this proceeding". [35] That being the position, this Court should make an order in similar terms to that made in Teoh to prevent the potential further abuse of its process and the incurring of unnecessary expense by, and the wasting of the resources of, the Commission.

[14]

Quach (No 3)

Mr Quach sought a review of Meagher JA's decision to make a Teoh order. That application was heard by this Court (McColl JA, Macfarlan JA and Sackville AJA) on 22 August 2016 and judgment was delivered on 19 October 2016, dismissing the review application with costs: Quach v Health Care Complaints Commission (No 3) [2016] NSWCA 284 (Quach (No 3)).
Mr Quach's motion filed on 22 March 2016 sought review of Meagher JA's decision in Quach (No 2) on four grounds:

Meagher JA was not in court attire when "sitting on the hearing" (Ground 1);
The "prosecution" of Mr Quach by the Commission was without statutory authority (Ground 2);
Mr Quach was denied procedural fairness before Meagher JA (Ground 3);
Even if Meagher JA "changed his position" and decided in Quach (No 2) to terminate proceeding 2015/158685 and dismiss paragraph 3 of the 21 October 2015 motion and the 28 January 2016 motion, "it remains the decision of the majority of the full bench (2:1)" not to do so (Ground 4);

Grounds 1, 2 and 4 were rejected by the Court as either being outside the matters properly to be considered on a review of Meagher JA's decision in Quach (No 2) or as demonstrating no error in his Honour's reasoning.
Ground 3 encompassed a number of matters complained of by Mr Quach. Those matters included accusations of collusion between the Registrar of the Court of Appeal and the Commission, and between Meagher JA and the Commission; of impropriety on the part of Meagher JA (as his Honour "produced his own evidence"); late service of key documents by the Commission; and general accusations of error or illogicality in the orders of Meagher JA.
The Court rejected all of Mr Quach's complaints in relation to Ground 3, concluding that there was no practical injustice demonstrated.
Mr Quach also raised a number of miscellaneous matters relating again to the validity of Marks ADCJ's participation as Principal Member in the proceedings before NCAT and the constitution of this Court by a single judge in Quach (No 2). These miscellaneous matters were rejected as not being directed to any ground of review, and as being based upon a number of errors and misconceptions that it is not necessary to summarise in the present case.
In Quach (No 3), the Court undertook a detailed analysis of the history and underlying rationale for orders in the nature of a Teoh order, and summarised the course of the proceedings before by Meagher JA. In doing so, it concluded that the Court has power to make such an order, and that Mr Quach's repetitive and hopeless applications and his incorrigible attitude towards his right to make them was the underlying basis for the order being made.

[16]

Quach (No 6)

Quach (No 6) involved two notices of motion that Mr Quach filed in proceeding 2015/158685, the first on 19 December 2016 (shortly after judgment was given in Quach (No 5)) and the second on 14 March 2017. In respect of both motions, Mr Quach was directed to show cause why the motions should not be dismissed summarily. Mr Quach filed submissions on 20 March 2017 and 1 June 2017 respectively.
The various challenges made and the orders sought by Mr Quach in the motions dealt with in Quach (No 6) may be summarised as follows:

Mr Quach sought orders "nullify[ing]" the decisions in Quach (No 2), Quach (No 4) and Quach (No 5);
Mr Quach sought orders that certain of his motions previously heard and determined by the Court "be heard by the Full Bench";
Allegations that the Commission and certain of its officers, the Attorney-General, and certain employees of the Crown Solicitor's Office were guilty of criminal contempt;
Challenges to the validity of the appointment of Sackville AJA;

On 27 June 2017, Mr Quach also served a notice to produce on the Attorney-General seeking "all relevant evidentiary material relating to qualification of Sackville AJ". This notice was in similar form and sought similar material as the notice to produce that Mr Quach later served on the Crown Solicitor's Office on 21 September 2017, which has been dealt with above. Mr Quach required the leave of the Court under UCPR r 34.1(b) to serve the notice to produce.
On 25 July 2017, this Court (Gleeson JA, Simpson JA and Sackville AJA) gave judgment in Quach (No 6) and concluded that Mr Quach had not shown cause why both the December 2016 motion and the March 2017 motion should not dismissed as vexatious and an abuse of process. Both motions were dismissed on that basis. Leave to serve the notice to produce was refused on the ground that Mr Quach's contentions regarding the validity of Sackville AJA's appointment had been rejected and therefore the notice to produce would serve no legitimate forensic purpose.

[19]

The Vexatious Proceedings Act 2008 (NSW)

Section 8(1)(a) of the Vexatious Proceedings Act empowers an authorised court to make a vexatious proceedings order in relation to a person if the court is satisfied (relevantly) that "the person has frequently instituted or conducted vexatious proceedings in Australia".
As well as listing specific persons who may apply for the Court to consider making a vexatious proceedings order, s 8(4) empowers an authorised court to make vexatious proceedings orders of its own motion. The Supreme Court is an authorised court: s 3(1).
The Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard: s 8(3).
Vexatious proceedings are defined in s 6 of the Vexatious Proceedings Act as follows: In this Act, "vexatious proceedings" includes: (a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or to achieve another wrongful purpose.
Although the definition in s 6 is not expressed to be exclusive, in Viavattene v Attorney General (NSW) [2015] NSWCA 44, Basten JA (Beazley P and Leeming JA relevantly agreeing) said that "one might expect it to be rare for a court to treat proceedings as vexatious proceedings unless they could fairly be characterised as falling under one of the descriptions in s 6": at [14].
The Supreme Court may make vexatious proceedings orders with the following effect (s 8(7)): (a) an order staying all or part of any proceedings in New South Wales already instituted by the person, (b) an order prohibiting the person from instituting proceedings in New South Wales, (c) any other order that the Court considers appropriate in relation to the person.
In considering whether the Court is satisfied of the threshold condition of frequency, the Court may have regard to the following (s 8(2)): (2) For the purposes of subsection (1), an authorised court may have regard to: (a) proceedings instituted or conducted in any Australian court or tribunal (including proceedings instituted or conducted before the commencement of this section), and (b) orders made by any Australian court or tribunal (including orders made before the commencement of this section).
The Vexatious Proceedings Act defines "instituting proceedings" in s 5 (relevantly) as follows: (1) In this Act, "institute", in relation to proceedings, includes: (a) for civil proceedings - the taking of a step or the making of an application that may be necessary before proceedings can be started against or in relation to a party… (d) for civil or criminal proceedings or proceedings before a tribunal - the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.

[20]

The meaning of "frequently"

The meaning of "frequently" in s 8(1)(a) was considered by Leeming JA (Basten JA and Meagher JA agreeing) in Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129 at [114]-[120]. The following principles emerge from his Honour's reasoning:

There is a change in language in s 8(1)(a) from the predecessor provision (Supreme Court Act, s 84) from the phrase "habitually and persistently" to "frequently" in s 8(1)(a) of the Vexatious Proceedings Act. This plainly lowered the threshold condition before the Court may make a vexatious proceedings order: at [115].
Both the quality of the vexatiousness of a proceeding and the nature of the proceeding will inform the assessment of frequency. For example, a handful of large proceedings making serious allegations without any proper basis may meet the statutory test of "frequently" because of their occupation of the time and resources of parties and the Court even though, taken together, they may not meet a numerical test of frequency: at [117]. In Viavattene, Leeming JA remarked (at [49]) that "the statutory term "frequently" is not to be assessed merely by an arithmetic calculation".
The preceding two considerations favour a "relatively low threshold" before the Court will be satisfied that the test of frequency has been met, but "it is not possible to articulate a precise test": at [114].
While it is not relevant to consider the proportion of the total number of proceedings instituted by a person which are vexatious in satisfaction of the threshold question of frequency, it is relevant to consider, in exercise of the discretion, what effect any order will have on the person's ability to conduct existing and future proceedings, particularly those that are not vexatious: [119]-[120].

If, once the Court has identified specific proceedings it considers to be vexatious, it is satisfied of the threshold condition of frequency, then it has a discretion to make a vexatious proceedings order: Mahmoud v Attorney General of New South Wales [2017] NSWCA 12 at [47] (Payne JA, Beazley P and Macfarlan JA agreeing).

[21]

The present case

The procedural history recounted above establishes the following.
First, Mr Quach failed on 13 August 2015 in his applications for special leave to appeal to the High Court from the judgment in Quach v NCAT (No 1) on 24 March 2015. Subsequently, he has sought by four separate motions to set aside the decision in Quach v NCAT (No 1). Each of those motions was dismissed in Quach v NCAT (No 2) as vexatious and an abuse of process.
Second, while Mr Quach has not sought special leave to appeal to the High Court from the judgment in Quach (No 1) on 10 February 2016, since then, Mr Quach has sought by various means to challenge the decision in Quach (No 1) or to re-agitate arguments that were determined by that decision. In Quach (No 2), one of Mr Quach's motions was dismissed as there was no jurisdiction for this Court to judicially review its own decision. In Quach (No 3), Mr Quach made submissions challenging this Court's rejection in Quach (No 1) of his complaint about Marks ADCJ's participation in the NCAT hearings, despite that complaint not being directed to any ground of review then before the Court. Two of the motions before the Court in Quach (No 4), involved challenges to Quach (No 1).
Third, in Quach (No 3), this Court observed (at [85]-[86]) when dismissing the challenge to the Teoh order made by Meagher JA in Quach (No 2), that Mr Quach's repetitive applications, his assertion of an entitlement to continue making such applications and his refusal to "terminate this proceeding" provided an "ample basis" for the Teoh order made in Quach (No 2). Since then, Mr Quach has sought on five further occasions, in submissions in relation to motions filed 6 June 2016 and 26 July 2016 (dealt with in Quach (No 4)), in a motion filed 26 October 2016 (dealt with in Quach (No 5)) and in motions filed 19 December 2016 and 14 March 2017 (dealt with in Quach (No 6)), to set aside the decision in Quach (No 2).
Fourth, in respect of the total of six motions dealt with in Quach (No 4), Quach (No 5), and Quach (No 6) and the four motions dealt with in Quach v NCAT (No 2), Mr Quach initiated or conducted proceedings that, on the findings of the Court, constituted an abuse of its process.
Further, it should be accepted that the findings and reasoning in Quach (No 2) and Quach (No 3) shows that the Court considered that Mr Quach instituted each application without reasonable grounds for doing so.
Mr Quach did not suggest in his submissions that there is some reason for departing from the findings made and views expressed in the matters identified above. Four of the six matters (involving ten separate motions) were an abuse of the process of the Court (s 6(a)) and two (involving four separate motions) were instituted without reasonable grounds (s 6(c)). That the applications were interlocutory does not prevent them from satisfying the definition of "vexatious proceedings" (s 4(b)): Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [60] (Allsop P, Beazley and Meagher JJA).
I am satisfied that Mr Quach has frequently instituted or conducted vexatious proceedings in Australia, within the meaning of s 8(1)(a) of the Vexatious Proceedings Act.
It is apparent from the history of this matter and his submissions that Mr Quach will continue, unless a vexatious proceedings order is made, to pursue the same claims as he has been making notwithstanding that his numerous applications relating to those claims have been dismissed in four cases on the ground that they constituted an abuse of the Court's processes.
Mr Quach advanced two arguments against making a vexatious proceedings order. The first assumed that he would not be given an opportunity to be heard in an oral hearing. As indicated, Mr Quach was afforded the opportunity to provide both written submissions and an oral hearing.
The second was that Mr Quach has a statutory right of appeal as referred to in Quach v NCAT (No 1) at [49] and that "this ruling cannot be varied". This submission can be taken as contending that any vexatious proceeding order should not prohibit Mr Quach from exercising the statutory appeal procedure. As already mentioned, the time for the exercise of the statutory appeal procedure in relation to NCAT's Stage One and Stage Two decisions has long passed. If Mr Quach now sought to appeal on a question of law, he would require an extension of time and such application would need to be accompanied by evidence which explains the reasons for the delay: UCPR, r 51.16(2). Similarly, if Mr Quach now sought leave to appeal on any other ground, he would also require an extension of time to file a summons seeking leave to appeal and again, such application would need to be accompanied by evidence which explains the reasons for the delay: UCPR, rr 51.10 and 51.12.
I am satisfied that a vexatious proceedings order should be made in each of the proceedings in this Court under s 8(7)(b), limited in scope to the matters to which Mr Quach's attention was directed, but excluding any application by Mr Quach for an extension of time in which to exercise the statutory appeal procedure in relation to NCAT's Stage One and Stage Two decisions.
Further, and as foreshadowed, all interlocutory applications, including the three notices of motion filed 8 August 2017 in the three proceedings in this Court, should be stayed under s 8(7)(a).

[22]

Conclusion and orders

For the reasons given above, a vexatious proceedings order should be made against Mr Quach in the terms set out below.
The three notices of motion filed by Mr Quach on 8 August 2017 should be stayed. The Court should refuse leave to Mr Quach to serve the notice to produce dated 21 September 2017 directed to the Attorney-General of New South Wales.
Accordingly, I propose the following orders: 2015/158685: 1. Pursuant to s 8(7)(a) of the Vexatious Proceedings Act 2008 (NSW), any interlocutory proceedings in proceeding 2015/158685 in the Court of Appeal, including notice of motion filed 8 August 2017 be stayed. 2. Refuse leave to the applicant to serve the notice to produce dated 21 September 2017 directed to the third respondent. 2015/48269: (3) Pursuant to s 8(7)(a) of the Vexatious Proceedings Act 2008 (NSW), any interlocutory proceedings in proceeding 2015/48269 in the Court of Appeal, including notice of motion filed 8 August 2017 be stayed. 2015/67618: (4) Pursuant to s 8(7)(a) of the Vexatious Proceedings Act 2008 (NSW), any interlocutory proceedings in proceeding 2015/67618 in the Court of Appeal, including notice of motion filed 8 August 2017 be stayed. 2015/158685, 2015/67618 and 2015/48269: (5) Pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW), Mr Michael Quach is prohibited from instituting any further proceedings in New South Wales relating to the subject matter of proceedings 1420086 and 1420065 in the New South Wales Civil and Administrative Tribunal (NCAT) (entitled "Health Care Complaints Commission v Quach") or relating to proceedings 2015/158685, 2015/67618 and 2015/48269 in the New South Wales Court of Appeal, except any application for an extension of time to file a summons seeking leave to appeal or any application for an extension of time to file a notice of appeal (as the case may be) in respect of the judgments and orders of NCAT in [2015] NSWCATOD 2 and [2015] NSWCATOD 32.
SIMPSON JA: I have read in draft the judgment of Gleeson JA, with which, subject to one matter with which I deal below, I agree.

[24]

Proposed orders

The sole area in which I depart from the proposed orders of Gleeson JA lies in the limitation to Order (5) and explained at [126] of the judgment, to exclude from that order the exercise by Mr Quach of such statutory rights of appeal as he retains in relation to the proceedings the subject of that order. As set out in the judgment of Gleeson JA, Mr Quach has repeatedly been advised of his rights of appeal, and has repeatedly declined to exercise them, choosing instead to pursue baseless applications and claims. The duty of fairness owed by this Court extends to litigants on both sides of the record. In my opinion, it would be potentially oppressive to the Health Care Complaints Commission (the respondent in those proceedings) to exclude from the order made under the Vexatious Proceedings Act 2008 (NSW) appeal proceedings that have been open to Mr Quach, but which he has deliberately and consistently shunned. Fairness dictates that an end be put to the stream of litigation commenced by Mr Quach which has been and is oppressive to the Health Care Complaints Commission.
The provisions of s 14 of the Vexatious Proceedings Act should not be overlooked. An order under s 8(7)(b), as proposed by Gleeson JA, does not constitute a complete guillotine on Mr Quach's appeal rights. It does, however, set a higher bar than those imposed by the need to seek leave to appeal or an extension of time in which to appeal. In this case that higher bar is more than amply justified.
Accordingly, I agree with proposed Orders (1) to (4) at [130] of the judgment. With respect to Order (5) as proposed, I agree that an order pursuant to s 8(7)(b) of the Vexatious Proceedings Act ought to be made, but with no exception with respect to proceedings with respect to appeals.
SACKVILLE AJA: I have read the comprehensive reasons for judgment of Gleeson JA. Subject to one qualification, I agree with the orders his Honour proposes and with his Honour's reasons. The qualification is that expressed by Simpson JA, with whose judgment on that issue I respectfully agree. I therefore agree that the orders as proposed by Gleeson JA subject to qualification proposed by Simpson JA.
Mr Quach has submitted that I should disqualify myself on the ground of apprehended bias. As the history of these proceedings shows, Mr Quach has repeatedly sought the removal of judicial officers who have not acceded to his applications. Since Mr Quach has made numerous unsuccessful applications to this Court it is inevitable that some Judges allocated to matters to which Mr Quach is a party or who are required to deal with an application such as the present, will have participated in previous rulings. In the absence of any findings adverse to Mr Quach's credibility there is no basis for concluding that such participation satisfies the test for apprehended bias.

Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal

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