Michael Van Tranh Quach v Health Care Complaints Commission

[2015] NSWSC 184

Supreme Court

New South Wales

Medium Neutral Citation:	Michael Van Tranh Quach v Health Care Complaints Commission [2015] NSWSC 184
Hearing dates:	4 March 2015
Date of orders:	04 March 2015
Decision date:	04 March 2015
Jurisdiction:	Common Law
Before:	Wilson J (as Duty Judge)
Decision:	Proceedings with file number 2015/59068 be removed into the Court of Appeal
Catchwords:	REMOVAL TO COURT OF APPEAL – related matter before the Court of Appeal - challenge to the proceedings before NSW Civil and Administrative Tribunal - to be heard in the Court of Appeal before the Tribunal matters continue
Legislation Cited:	Supreme Court Act 1970 Uniform Civil Procedure Rules 2005
Category:	Procedural and other rulings
Parties:	Michael Van Tranh Quach (Plaintiff) Health Care Complaints Commission (Defendant)
Representation:	Counsel: Plaintiff appears in person unrepresented Ms Richardson (Defendant)
File Number(s):	2015/59068

Ex TEmpore Judgment

1. This motion seeks orders that proceedings in the Supreme Court with the reference 2015/59068 be removed into the Court of Appeal and that, once removed, those proceedings be heard together with proceedings which are already in that court listed on 11 March, those proceedings bearing file number 2015/43211.

2. Dr. Quach, who appears in person before the court unassisted by legal representation, opposes that motion.

3. Dr. Quach has himself filed motions and in those motions he seeks what appears to be judicial review of the powers of the NSW Civil and Administrative Tribunal (“NCAT”) to hear and determine complaints brought against him by the Health Care Complaints Commission. One such notice of motion is before the court. It is not entirely clear to me precisely what relief is sought in that motion but from what has been said in court it seems to be a motion seeking judicial review of the decisions of the Tribunal.

4. The proceedings which are already before the Court of Appeal on 11 March 2015 for hearing were removed to that court by order of his Honour Garling J. The Full Court is to be convened, I am told by counsel for the Commission, and is to deal with the matter on an urgent basis so that any challenge to the Tribunal proceedings can be heard and determined prior to what is described as phase two of the NCAT proceedings relevant to Dr Quach, which are listed on 10 April 2015.

5. It is submitted for the Commission that if the matter which is now before the court, file 2015/59068, is not also removed to the Court of Appeal, the Court of Appeal will deal with one aspect of the challenge to NCAT but another will remain outstanding in the list of the Common Law Division, potentially preventing the Tribunal proceedings from going ahead.

6. The proceedings bearing the two respective file numbers appear to be related to the same issue. The same question of law appears to apply, or at least related questions of law. To hear and determine the related proceedings in different divisions of the Court is likely a matter which would lead not just to a duplication of costs, but which would also have the potential to delay proceedings, preventing their expeditious disposal.

7. There is a statutory power to transfer proceedings to the Court of Appeal, s 48 of the Supreme Court Act 1970.

8. It appears that the provision does apply to the circumstances of the matter before the court, in that the Tribunal that is hearing the complaint against Dr Quach is constituted by an Acting District Court Judge as presiding member of the Tribunal of four. The other three members, as I understand it, will be two medical practitioners and one lay person. The fact that the Tribunal is to be presided over by an Acting District Court Judge, for all relevant purposes a Judge of the District Court, enlivens the operation of s.48 of the Supreme Court Act 1970.

9. In the light of the operation of s 48 it transfer of the matter to the Court of Appeal is the appropriate course.

10. If that interpretation is in error there is an alternative basis and power upon which the proceedings can be transferred to the Court of Appeal. That is discretionary power based on rule 1.21 of the Uniform Civil Procedure Rules 2005. Rule 1.21(1)(a) says that:

1. The Supreme Court in a Division may, in relation to proceedings commenced in the Division, make an order that the proceedings be removed into the Court of Appeal:

1. if it makes an order under rule 28.2 for the decision of a question of law, or

2. if, having stated the question to be decided or determined, it is satisfied that special circumstances exist that render it desirable to make an order for their removal into the Court of Appeal.

11. I am satisfied, however, that s.48 governs the transfer of the proceedings, and it is not necessary to state a question of law such that the proceedings can be transferred pursuant to the Rules.

12. Accordingly I propose to grant the Health Care Complaints Commission’s motion.

13. I am not inclined to make order 2 that is sought in the motion but I do make an order that proceedings with file number 2015/59068 be removed into the Court of Appeal.

14. Joinder of the proceedings already before that court clearly is the sensible outcome but I think that is a matter for the Registrar of the Court of Appeal rather than for me.

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Decision last updated: 10 March 2015