Quach v Australian Health Practitioner Regulation Agency (Notice to Produce)

[2023] FCA 577

FEDERAL COURT OF AUSTRALIA

Quach v Australian Health Practitioner Regulation Agency (Notice to Produce) [2023] FCA 577  

File number(s):	ACD 29 of 2021
Judgment of:	THAWLEY J
Date of judgment:	1 June 2023
Date of publication of reasons:	2 June 2023
Catchwords:	PRACTICE AND PROCEDURE – notice to produce – whether document sought are relevant – notice to produce set aside
Legislation:	Criminal Code 1995 (Cth) s 150.1
Cases cited:	Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313
Division:	General Division
Registry:	Australian Capital Territory
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	8
Date of hearing:	1 June 2023
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Ms E Latiff
Solicitor for the Respondent:	MinterEllison

ORDERS

ACD 29 of 2021

BETWEEN:

DR MICHAEL VAN THANH QUACH

Applicant

AND:

AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY

Respondent

ORDER MADE BY:	THAWLEY J
DATE OF ORDER:	1 JUNE 2023

THE COURT ORDERS THAT:

1.The notice to produce filed and served by the applicant on 7 January 2022 be set aside.

2.The applicant pay the costs of the respondent in respect of the notice to produce.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011...

REASONS FOR JUDGMENT
(Revised from Transcript)

THAWLEY J:

1. In these proceedings, Dr Quach has applied for an extension of time and for leave to appeal from orders made on 31 March 2021 summarily dismissing his claim against the Australian Health Practitioner Regulation Agency (AHPRA): Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313.

2. In the proceedings before the primary judge, Dr Quach claimed that an inspector employed by AHPRA made a false representations in relation to a Commonwealth body, pursuant to section 150.1 of the Criminal Code 1995 (Cth). His claim also included the following:

   2. The Australian Health Practitioner Regulatory Authority, as a “national body,” acted without valid (Commonwealth) statutory authority to effectively cancel the Plaintiff's registration as a medical practitioner on 24 April 2015, in every state and territory jurisdiction of Health Practitioner Regulation National Law; (NSW), (NT), (ACT), (WA), (QLD), (Tasmania), (South Australia), (Victoria).

3. On 7 January 2022, Dr Quach filed and served on AHPRA a Notice to Produce dated 4 November 2021, seeking production of the employment contract of AHPRA’s Chief Executive Officer, Mr Martin Fletcher.

4. On 24 January 2022, AHPRA wrote to the Dr Quach providing notice of its objections to the Notice. This correspondence also sought an explanation from Dr Quach as to why the document sought in the Notice was relevant to the issues in dispute. No response from Dr Quach was received.

5. By a letter dated 10 February 2022, the AHPRA notified the Court that it objected to the Notice on two bases: (a) that it does not seek material which is relevant to the issues which arise on the application for an extension of time and leave to appeal; and (b) it constitutes a fishing expedition and an abuse of process. Dr Quach did not respond to those propositions.

6. The matter was listed before a Registrar of the Court for return of the Notice on 11 February 2022. Before the return date, the Dr Quach lodged an interlocutory application seeking the Registrar’s recusal. On 11 February 2022, the Registrar made an order that the return of the Notice be adjourned to be heard by the Court that is constituted to hear the substantive application.

7. The Court inquired on the hearing of the substantive application today of Dr Quach whether he pursued his Notice to Produce. Dr Quach confirmed that he did. AHPRA as a matter of substance has sought to set aside the Notice on the basis that it does not seek material relevant to the application made today.

8. I am not satisfied that the employment contract of AHPRA’s CEO is relevant to any issue that requires determination with the application for an extension of time and for leave to appeal. That being the case the appropriate order is that the Notice be set aside with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thawley.

Associate:

Dated:       2 June 2023