Quach v RU

1. The application for extension of time and leave to appeal in ACD 91 of 2019 filed 25 November 2019 be dismissed.
2. The appellant pay the respondent's costs of the application for extension of time and leave to appeal in ACD 91 of 2019.
3. The application for leave to appeal in ACD 93 of 2019 filed 28 November 2019 be dismissed.
4. The appellant pay the respondent's costs of the application for leave to appeal in ACD 93 of 2019.
5. The application for extension of time and leave to appeal in ACD 36 of 2020 be referred to the Full Court for consideration of the question whether an appeal lies as of right or leave to appeal is required and: (a) if it be determined that leave to appeal is required, determination of that application; and (b) if it be determined that leave to appeal is not required, determination of the appeal.
6. Costs in respect of the application for an extension of time and leave to appeal in ACD 36 of 2020 be reserved and determined by the Full Court. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WIGNEY J: 1 Dr Michael Van Thanh Quach is a familiar self-represented litigant in this and other courts. This judgment deals with three applications for leave to appeal decisions, two of which require extensions of time. Two of the applications relate to interlocutory decisions concerning matters of practice and procedure. The other application relates to a judgment dismissing the substantive proceeding in which those two decisions were made on the basis that it was an abuse of process. 2 For the brief reasons that follow, Dr Quach's applications in respect of the interlocutory applications concerning matters of practice and procedure must be dismissed. As for the application relating to the judgment dismissing the substantive proceeding, the appropriate order is for the application to be referred to the Full Court for determination of, among other things, whether leave to appeal is required, or an appeal lies as of right.

Background and history of the proceedings 3 It is necessary to provide a brief outline of the background and history of the relevant proceedings. 4 Dr Quach was once a registered medical practitioner who practiced in Sydney and Canberra. Some considerable time ago, however, the Health Care Complaints Commission (HCCC) lodged two notices of complaint against Dr Quach in the NSW Civil and Administrative Tribunal (NCAT) in relation to his care and treatment of patients in Sydney in 2008 and 2012. 5 In 2015, NCAT found that Dr Quach was not competent to practice medicine because he suffered from an impairment. That impairment was a narcissistic personality disorder. 6 Dr Quach applied for judicial review of NCAT's decision. That application was dismissed by the NSW Court of Appeal in March 2015: Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63. The following month, NCAT cancelled Dr Quach's registration as a medical practitioner: Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32. Subsequent applications by Dr Quach for special leave to appeal to the High Court from the decision of the NSW Court of Appeal were dismissed. Dr Quach also unsuccessfully sought to reagitate his arguments in the NSW Court of Appeal. That ultimately led to him being declared a vexatious litigant in respect of those proceedings: Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267. 7 That was not, however, the end of the litigation instigated by Dr Quach arising from his deregistration. Costs orders were made in the HCCC's favour in the proceedings concerning Dr Quach's deregistration. The HCCC sought to enforce those costs orders. A legal officer employed by the HCCC wrote to Dr Quach in that regard. Those letters prompted Dr Quach to apply for a personal protection order (PPO) in the ACT Magistrates Court. That application was summarily dismissed in April 2016. 8 That did not deter Dr Quach. In May 2016, he filed an appeal against the magistrate's decision in the Supreme Court of the Australian Capital Territory. During that proceeding, Dr Quach purported to serve on the HCCC a subpoena for the production of documents. The HCCC did not produce any documents in answer to the subpoena. It contended that a provision in the Health Care Complaints Act 1993 (NSW) provided that it could not be compelled to produce documents. Dr Quach did not accept that contention and filed an application alleging that the HCCC was in contempt. That application was ultimately dismissed by Penfold J in August 2017. Her Honour found, among other things, that the Service and Execution of Process Act 1992 (Cth) (SEPA) applied to the subpoena that Dr Quach purported to have served on the HCCC and that the purported service of the subpoena was defective because Dr Quach had failed to comply with various provisions of SEPA: Quach v RU (No 1) [2017] ACTSC 233. It is worth noting that Penfold J characterised Dr Quach's response to the arguments concerning the application of SEPA as ranging from the "obscure to the incoherent": Quach v RU (No 1) at [41]. 9 Dr Quach's appeal against the magistrate's summary dismissal of his application for a PPO was also unsuccessful. It was dismissed by Penfold J in August 2017: Quach v RU (No 2) [2017] ACTSC 234. It is unnecessary to rehearse her Honour's reasons for rejecting Dr Quach's appeal grounds, save as to note that her Honour characterised some of the complaints that underlay the PPO application as "bizarre" and "scurrilous": Quach v RU (No 2) at [3] and [76]. 10 It may be noted that the judgments delivered by Penfold J identify the HCCC legal officer, who was the respondent to the appeal, by way of the pseudonym "RU". That was a result of a judgment and orders made by Penfold J shortly after she delivered the substantive judgment in respect of the appeal. Her Honour noted that a provision in the Personal Violence Act 2016 (ACT) effectively prohibited the publication of the identity of the parties to a proceeding for a PPO and that that protection should be maintained in respect of the appeal: Quach v RU (No 3) [2017] ACTSC 258. Her Honour reasoned as follows (at [22]): I have made no adverse findings against the solicitor who is the respondent to the appeal. On the other hand, the appellant has made a number of allegations against her (including some described in my judgment on the appeal as "scurrilous") that appear to be entirely without foundation. This of itself may be reason enough to maintain the protection that is granted to her by the Personal Violence Act in the absence of any court order. The submissions made on her behalf (at [13] above) also provide reasons not to deprive her of anonymity. 11 The submissions recorded in [13] to which her Honour referred were, in summary, that the HCCC legal officer was relevantly acting in her capacity as an employee of the HCCC, there was no public interest in the publication of her name, the application for the PPO was summarily dismissed, and Dr Quach's appeal had been dismissed with costs. 12 Dr Quach sought to pursue an appeal against the judgment of Penfold J dismissing his appeal, however his application was not filed within the prescribed time. His application for leave to appeal out of time was refused: Quach v RU [2017] ACTCA 63.

Proceedings in this Court 13 In August 2019, Dr Quach filed an originating application in this Court in which he sought certain relief against the HCCC legal officer who was the respondent to the proceeding in the ACT Supreme Court. Dr Quach named the HCCC legal officer in the originating application. While the relief sought by Dr Quach was expressed in somewhat obscure and opaque terms, the effect of it appeared to be that he sought a "finding" that SEPA did not apply to the subpoena which had purportedly been served on the HCCC and which was the subject of the judgment of Penfold J in Quach v RU (No 1). 14 Dr Quach's originating application was eventually heard by the primary judge on 29 May 2020. On the same day, his Honour delivered an ex tempore judgment in which he ordered that the proceeding be dismissed as an abuse of process and that Dr Quach pay the respondent's costs: Quach v RU (No 2) [2020] FCA 957. While there are indications in the primary judge's reasons for judgment that his dismissal of the proceedings was a result of the fact that his Honour was of the view that the application was without merit and "legally incoherent" (see [15]), the main reason for the dismissal appeared to be that his Honour considered that the proceeding did not raise any justiciable controversy and was an abuse of process. His Honour's conclusion was expressed in the following terms (at [26]-[27]): In my opinion this application has no forensic merit. It is incapable of resolving any matter between the Commission or RU and Mr Quach. The subpoena could have no possible continuing force or effect following the dismissal of the appeal in which it was issued and Penfold J's determination that service of it was not effective. It cannot be the subject matter of this or any other litigation. For these reasons, I am of opinion that there is no "matter" or controversy between the parties. This proceeding must be dismissed for want of jurisdiction. Moreover, I am also of opinion that it is an abuse of process for the reasons I have given: Walton v Gardiner (1993) 177 CLR 378 at 392-393 per Mason CJ, Deane and Dawson JJ. I will order that the proceeding be dismissed as an abuse of process with costs. 15 The judgment of the primary judge dismissing the substantive proceeding is the subject of one of Dr Quach's applications for extension of time and leave to appeal (ACD 36 of 2020). As discussed in more detail later, however, there is a real issue as to whether leave to appeal is required. Given the terms of the judgment, it may be that Dr Quach has an appeal as of right. Before addressing that issue, however, it is necessary to outline two decisions that were made during the case management of the hearing of the substantive proceeding and before it was dismissed. That is because those decisions are the subject of Dr Quach's other applications for leave to appeal. 16 The first decision was made during a case management hearing on 24 September 2019. During that case management hearing, Griffiths J made an order under s 37AH of the Federal Court of Australia Act 1976 (Cth) (FCA Act) that the name of the respondent not be published and that henceforth the respondent be referred to by the pseudonym "RU" (the pseudonym order). His Honour noted that the order was "made to prevent prejudice to the administration of justice with particular regard to the matters outlined at [13] of Penfold J's judgment in Quach v RU (No 3) [2017] ACTSC 258". 17 The order made by Griffiths J is the subject of one of Dr Quach's applications for an extension of time and leave to appeal (ACD 91 of 2019). 18 The second decision was made during a later case management hearing on 22 November 2019. During that case management hearing, the primary judge made an order that "[e]ach of the parties give such notice or notices under s 78B of the Judiciary Act 1903 (Cth) and rr 8.11 and 8.12 of the Federal Court Rules 2011, as is necessary, to raise any constitutional question that he or she perceives, on or before 13 December 2019" (the s 78B Judiciary Act order). That order was made because RU had foreshadowed an application to amend her defence to contend that the Court had no jurisdiction as there was no justiciable matter within Ch III of the Constitution. The primary judge subsequently granted RU leave to amend her defence to raise that contention. 19 The s 78B Judiciary Act order is the subject of one of Dr Quach's applications for leave to appeal (ACD 93 of 2019). 20 I propose to deal first with Dr Quach's application concerning the pseudonym order, then his application concerning the s 78B Judiciary Act order. I will then consider Dr Quach's application concerning the dismissal of the substantive proceeding. Before doing so, however, it is necessary to briefly address the relevant principles in respect of applications for leave to appeal.

Relevant principles - leave to appeal 21 The principles that apply in considering an application for leave to appeal are settled and well-known. It suffices to note that, in the frequently cited and applied decision of the Full Court in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 397; [1991] FCA 844, it was said that the principle criteria that must be addressed in considering any application for leave to appeal are: first, whether in all the circumstances, the decision or order of the primary judge was attended with sufficient doubt to warrant it being reconsidered by the appellate court; and second, whether substantial injustice would result if leave were refused, supposing that the decision made by the primary judge was wrong. The two criteria are cumulative and both must ordinarily be made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139 at [4]-[5] (Ryan, Stone and Jagot JJ); Ah-Chee v Stuart [2019] FCAFC 165 at [12] (Reeves, Griffiths and Charlesworth JJ). 22 Where the decision which is the subject of the application for leave to appeal involves a discretionary decision relating to a matter of practice and procedure and no questions of general principle are at stake, appellate intervention requires the "exercise of particular caution": Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [34] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) citing Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at 78 [53]. 23 In relation to the application for an extension of time, the factors that should generally be taken into account in considering such an application include the extent of the delay, the explanation for the delay, any prejudice to the respondent resulting from the delay and the merits of the proposed appeal: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; [1984] FCA 186.

ACD 91 of 2019 - the pseudonym order 24 Leave to appeal the pseudonym order is required because it is an interlocutory order: s 24(1A) of the FCA Act. Dr Quach requires an extension of time to file an application for leave to appeal because his application was not filed within 14 days after the date the order was made: see rr 35.13 and 35.14 of the Federal Court Rules 2011 (Cth). 25 Dr Quach's application for an extension of time to seek leave to appeal the pseudonym order must be rejected for a number of reasons. 26 First, the pseudonym order has already been the subject of an application for leave to appeal. That application was refused by the primary judge on 15 November 2019: Quach v RU [2019] FCA 2041. It is not open to Dr Quach to make a second application for leave to appeal: Hurd v Zomojo Pty Ltd [2013] FCA 581 at [34]-[36]. Nor is it open to Dr Quach to appeal, or seek leave to appeal, from the decision refusing his application for leave to appeal: Reid v Nairn (1985) 60 ALR 419 at 421. 27 Second, Dr Quach has not identified any intelligible or reasonably arguable ground of appeal in respect of the pseudonym order. His proposed appeal ground contends that he was not given any notice of the application for the pseudonym order and there was accordingly a "lack of due process". This was a complaint that he agitated before Griffiths J. His Honour responded that he was giving Dr Quach an opportunity to respond and that Dr Quach was aware that a suppression order had been made by Penfold J and that it could therefore hardly have "come as a surprise" to him that an application was made "for there to be consistency in the treatment of the identity of the respondent". Dr Quach did not, in response, suggest that he was taken by surprise or that he needed further time to consider his position. Indeed, he advanced an argument against the pseudonym order based on the fact that the respondent's name had been published in other decisions. I am not persuaded in all the circumstances that Dr Quach was denied procedural fairness or "due process" in respect of the pseudonym order. In my view, Dr Quach was given a fair and reasonable opportunity to make submissions in opposition to the pseudonym order. 28 Dr Quach's written submissions raise a number of arguments as to why Penfold J should not have made the original pseudonym order. Those arguments are, however, not only beside the point but are so ridiculous that I do not propose to repeat them. 29 Finally, in his oral submissions, Dr Quach submitted that Griffiths J erred in making the pseudonym order because it operated in derogation of the principle of open justice. There is, however, no merit in that argument. Open justice is of course of a fundamental principle of this and other courts, however it is well accepted that there are circumstances in which it is appropriate to make pseudonym orders. This was, in my view, plainly such a case. 30 Third, in his application and draft notice of appeal, Dr Quach also contends that he did not receive a fair hearing before the primary judge in respect of his first application for leave to appeal the pseudonym order. It is not open to Dr Quach to impugn or effectively appeal the decision of the primary judge to refuse him leave to appeal for the reasons already given. If Dr Quach wanted to challenge that decision, he was required to take a different course. In any event, having read the transcript of the hearing of the leave application before the primary judge, I am far from persuaded that Dr Quach was not afforded a fair hearing or a fair opportunity to make submissions in support of his application for leave to appeal. 31 Fourth, I am not persuaded that Dr Quach will suffer any substantial injustice if leave to appeal is refused, even on the hypothetical scenario that the making of the pseudonym order was somehow in error. Indeed, it is difficult to see what legitimate interest Dr Quach had or has in opposing the pseudonym order in all the circumstances. 32 Fifth, I am not persuaded that Dr Quach has provided an adequate or reasonable explanation for why he failed to file an application for leave to appeal within time. The pseudonym order was made on 24 September 2019. Dr Quach's application for an extension of time was not filed until 25 November 2019. I am unable to discern from the mass of material filed by Dr Quach any rational explanation for the delay or any sensible argument as to why he should be granted the Court's indulgence to apply out of time.

ACD 93 of 2019 - the s 78B Judiciary Act order 33 Leave to appeal the s 78B Judiciary Act order is required because it is an interlocutory order: s 24(1A) of the FCA Act. 34 The application for leave to appeal in respect of the s 78B Judiciary Act order should be refused for at least two reasons. 35 First, Dr Quach's proposed grounds of appeal, to the extent that they are comprehensible, are entirely unmeritorious. So too are his written submissions. The proposed grounds of appeal comprise a bare assertion that there was no constitutional issue and an almost incomprehensible assertion about the Court's jurisdiction. It is also difficult for me to summarise Dr Quach's written submissions because I simply don't understand the point, or points, that he seeks to make. In oral submissions, Dr Quach submitted that the primary judge erred in making the order because his Honour did not refer to the "Cross-Vesting Act", or that something in that Act deprived the Court of jurisdiction. I am unable to discern any merit whatsoever in that submission. 36 The making of the order in question involved a discretionary decision in respect of a matter of practice and procedure. It was plainly open to the primary judge to make the order in the circumstances. Indeed, once the respondent foreshadowed raising an argument or contention involving a matter arising under the Constitution, his Honour was effectively duty bound to make the order. That is apparent from the terms of s 78B of the Judiciary Act. It cannot sensibly be argued that the making of the order was the product of any error of principle or was attended with any doubt sufficient to warrant appellant intervention. 37 Second, and in any event, it cannot sensibly be argued that Dr Quach would suffer any injustice supposing that the making of the order did involve or arise from any error. It would seem that a notice was subsequently issued, though no Attorneys-general indicated any intention to intervene. Leave was subsequently granted to the respondent to amend the defence to include the potential constitutional issue. As has already been noted, ultimately the substantive proceeding was dismissed for reasons that did not involve the constitutional issue. In all the circumstances, Dr Quach could not possibly suffer any injustice whatsoever even if the primary judge erred in some way in making the s 78B Judiciary Act order.

ACD 36 of 2020 - the judgment dismissing the substantive proceeding 38 As has already been noted, while Dr Quach has filed an application for an extension of time and leave to appeal the primary judge's judgment dismissing the substantive proceeding, there is a real issue as to whether leave to appeal is required. 39 It is clear that leave to appeal is required where summary judgment pursuant to s 31A of the FCA Act, or rule 26.01 of the Rules, is given in respect of a proceeding on the basis that the applicant had no reasonable prospect of successfully prosecuting the proceeding. It does not, however, appear that the primary judge dismissed the proceeding pursuant to either s 31A of the FCA Act or r 26.01 of the Rules. Dr Quach's application was listed for final hearing. The respondent did not file any application for summary dismissal. After hearing argument, his Honour dismissed the proceeding, as opposed, to giving judgment in favour of the respondent. 40 It is also clear that an order staying an action as an abuse of process on the basis that the application disclosed no reasonable cause of action is an interlocutory order: Re Luck (2003) 203 ALR 1; [2003] HCA 70 at [9]. An order permanently staying a proceeding as an abuse of process on the basis of res judicata or Anshun estoppel, however, is regarded as a final judgment: see Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156 at [95]-[107] (Button J, Lee J agreeing at [26]). 41 Perhaps more importantly, it appears to be accepted that the dismissal of a proceeding for want of jurisdiction on the basis that the claims advanced are not justiciable is a final judgment, not an interlocutory judgment: Australia Bay Seafoods Pty Ltd v Northern Territory (2022) 295 FCR 443; [2022] FCAFC 180 at [73]. 42 As discussed earlier, the main basis upon which the primary judge dismissed the substantive proceeding appears to have been that Dr Quach's claims were not justiciable and the Court therefore had no jurisdiction. In those circumstances, and despite the fact that Dr Quach has filed an application for an extension of time and leave to appeal, there is a real issue as to whether the order dismissing his substantive proceeding was final, in which case leave is not required. 43 In the circumstances, the preferable course is to refer Dr Quach's application to the Full Court for consideration of whether leave to appeal is required. If leave to appeal is considered to be required, the Full Court can determine that issue and if leave is granted, proceed with the appeal. If the Full Court considers that leave is not required, Dr Quach's application can be dealt with as if it were an appeal. The respondent conceded that this was an appropriate course and Dr Quach, not surprisingly, did not demur. It does appear to me, however, that the matter would benefit from some case management before being heard by the Full Court. It would, for example, be appropriate for the parties to file written submissions in respect of the nature of the judgment and the need for leave to appeal. 44 Given that the application is to be referred to the Full Court, it would be inappropriate for me to say anything about the apparent merit of the matter. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.