FEDERAL COURT OF AUSTRALIA
Quach v Davenport [2024] FCA 973
Appeal from: Application for leave to appeal: Quach v McIntyre [2024] FCA 564 File numbers: QUD 336 of 2024
QUD 337 of 2024Judgment of: LEE J Date of judgment: 21 August 2024 Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal from summary judgment – where applicant contends primary proceedings are “criminal proceedings” within the meaning of s 31A(5) of the Federal Court of Australia Act 1976 (Cth) – where appeal has no reasonable prospects of success – application dismissed with costs Legislation: Competition and Consumer Act 2010 (Cth)
Federal Court of Australia Act 1976 (Cth) ss 31A, 31A(5), 37M(3)
Evidence Act 1995 (Cth) s 91
Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2017] FCAFC 98; (2017) 252 FCR 1
Nationwide News Pty Limited v Rush [2018] FCAFC 70
Quach v Australian Health Practitioner Regulation Agency (Extension of Time) [2023] FCA 57
Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313
Quach v McIntyre [2024] FCA 564
Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; (2010) 81 ATR 36
Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: Economic Regulator, Competition and Access Number of paragraphs: 21 Date of hearing: 21 August 2024 Counsel for the applicant: The applicant appeared in person Counsel for the respondent (QUD 336 of 2024): Mr MWP Ziebell Solicitor for the respondent (QUD 336 of 2024): Hunt & Hunt Counsel for the respondent (QUD 337 of 2024): Mr M Windsor Solicitor for the respondent (QUD 337 of 2024): Small Myers Hughes Lawyers
ORDERS
QUD 336 of 2024 BETWEEN: DR MICHAEL VAN THANH QUACH
Applicant
AND: HELEN DAVENPORT
Respondent
QUD 337 of 2024 BETWEEN: DR MICHAEL VAN THANH QUACH
Applicant
AND: MARK PHILLIP MCINTYRE
Respondent
ORDER MADE BY:
LEE J
DATE OF ORDER:
21 AUGUST 2024
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from the transcript)LEE J:
A INTRODUCTION AND BACKGROUND
This is an application for leave to appeal (application) brought by Dr Michael Van Thanh Quach, against the summary dismissal of two proceedings pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The two proceedings are:
(1)Dr Michael Van Thanh Quach v Helen Davenport (QUD 336 of 2024); and
(2)Dr Michael Van Thanh Quach v Mark Phillip McIntyre (QUD 336 of 2024).
The reasons for dismissing both proceedings are set out by the primary judge in Quach v McIntyre [2024] FCA 564 (J).
It is unnecessary to set out the factual background giving rise to this application in any detail, for two reasons. The first is that the primary…
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CaseChat Overview and Summary
The case of Quach v Davenport involved an application for leave to appeal from summary judgment in the Federal Court of Australia. Dr Quach sought to challenge the primary judge's decision to dismiss his proceedings against Ms Helen Davenport and Mr Mark Phillip McIntyre on the basis of summary judgment. The primary judge had ruled that the proceedings were not criminal proceedings and, therefore, the summary judgment provisions applied. Dr Quach argued that the proceedings were, in fact, criminal proceedings, which would exclude them from the summary judgment provisions.
The legal issues the court had to determine included whether the proceedings were "criminal proceedings" within the meaning of s 31A(5) of the Federal Court of Australia Act 1976 (Cth). Dr Quach contended that since the proceedings involved allegations of cartel conduct under the Competition and Consumer Act 2010 (Cth), they should be classified as criminal proceedings. The court had to consider whether the nature of the proceedings, being civil in nature, fell within the exclusion provided by s 31A(5). The court also considered whether there was any procedural irregularity, such as the reference to previous judgments, which might affect the outcome of the case.
The court dismissed Dr Quach's application for leave to appeal, finding that the primary judge's decision was correct. The court held that the proceedings were not criminal in nature and thus fell within the scope of the summary judgment provisions. The court noted that the definition of "criminal proceedings" in s 31A(5) of the Federal Court of Australia Act 1976 (Cth) did not include the type of civil proceedings initiated by Dr Quach. The court further rejected Dr Quach's argument that the reference to previous judgments by the respondents' counsel was improper, stating that it did not constitute evidence of a fact in issue in prior proceedings. Consequently, the court found that the appeal had no reasonable prospects of success.
ORDERS:
1. The application for leave to appeal be dismissed with costs.
The legal issues the court had to determine included whether the proceedings were "criminal proceedings" within the meaning of s 31A(5) of the Federal Court of Australia Act 1976 (Cth). Dr Quach contended that since the proceedings involved allegations of cartel conduct under the Competition and Consumer Act 2010 (Cth), they should be classified as criminal proceedings. The court had to consider whether the nature of the proceedings, being civil in nature, fell within the exclusion provided by s 31A(5). The court also considered whether there was any procedural irregularity, such as the reference to previous judgments, which might affect the outcome of the case.
The court dismissed Dr Quach's application for leave to appeal, finding that the primary judge's decision was correct. The court held that the proceedings were not criminal in nature and thus fell within the scope of the summary judgment provisions. The court noted that the definition of "criminal proceedings" in s 31A(5) of the Federal Court of Australia Act 1976 (Cth) did not include the type of civil proceedings initiated by Dr Quach. The court further rejected Dr Quach's argument that the reference to previous judgments by the respondents' counsel was improper, stating that it did not constitute evidence of a fact in issue in prior proceedings. Consequently, the court found that the appeal had no reasonable prospects of success.
ORDERS:
1. The application for leave to appeal be dismissed with costs.
Orders
Orders of the court
1. The application for leave to appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
The second aspect is that by making reference to previous judgments, counsel acting on behalf of the respondents in one or other of the primary proceedings contravened s 91 of the Evidence Act 1995 (Cth), which provides:91 Exclusion of Evidence of Judgments and Convictions (1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. (2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose. This contention is without substance and merely needs to be stated to be rejected: reference to prior authority does not involve a party seeking to adduce evidence of a fact that was in issue in that prior proceeding, and ground one must also fail.F CONCLUSION For the above reasons, the first limb of the Décor test is plainly not satisfied. The application for leave to appeal must be dismissed with costs.
Decision
Reasons for decision
As Dr Quach explained in his oral and written submissions, grounds two and three each turn upon the proper construction of s 31A of the FCA Act, which is in the following terms: Summary judgment (1)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a)the first party is prosecuting the proceeding or that part of the proceeding; and (b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding. (2)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a)the first party is defending the proceeding or that part of the proceeding; and (b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:(a)hopeless; or (b)bound to fail; for it to have no reasonable prospect of success. (4)This section does not limit any powers that the Court has apart from this section. (5) This section does not apply to criminal proceedings. By dint of subsection (5), if the two proceedings before the primary judge were “criminal proceedings”, it follows there was a want of power under s 31A to dismiss the proceedings summarily. The argument Dr Quach intends to advance on any appeal is that the proceedings that were summarily dismissed were, in fact, criminal proceedings as that term is defined in s 31A(5). This is said to be because the proceedings involved an assertion that two individuals, namely Ms Helen Davenport and Mr Mark Phillip McIntyre (together, respondents), were guilty of “cartel conduct” as that concept is defined in the Competition and Consumer Act 2010 (Cth) (at J [34]). The determinative part of the primary judge’s reasons in rejecting the contention that the proceedings before the Court were criminal proceedings within the meaning of s 31A(5) is set out (at J [51]–[52]) where his Honour observed: [51]Dr Quach submitted that both proceedings were “criminal proceedings” and that the respondents were “statute barred” from applying for summary judgment by reason of s 31A(5) of the FCA Act. [52]Making a contract containing a cartel provision or giving effect to a cartel provision are indictable offences – see: ss 45AF and 45AG of the CCA. Dr Quach has no authority to bring criminal proceedings in relation to an indictable offence in this Court – see: Taylor v Attorney-General (Cth) [2019] HCA 30; (2019) 372 ALR 581 at [17] – [23]; Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313 at [36]-[39]; Quach v AHPRA at [19], [20]. The proceedings commenced by Dr Quach against Mr McIntyre and Ms Davenport are not “criminal proceedings” within the meaning of s [31A(5)]. The difficulty for Dr Quach is that there is existing authority on the construction of s 31A(5) of the FCA Act that is directly in conflict with his submission that the proceedings before the primary judge are “criminal proceedings”. As Abraham J explained in another proceeding in which Dr Quach was the applicant, Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313 (at [36]):[36]… The applicant submitted that he is bringing a private prosecution against Ms Barekzai pursuant to s 13 of the Crimes Act. The applicant asserts that Ms Barekzai has committed a criminal offence contrary to s 150.1 of the Criminal Code. His submissions also make clear that he is pursuing her for having committed a criminal offence, as he contended that this Court has criminal jurisdiction by virtue of the National Practice Area for Federal Crimes and Related Proceedings. This Court does not have a general criminal jurisdiction, although it does have such jurisdiction in respect to some matters. The existence of a National Practice Area does not create a general jurisdiction not otherwise provided. He also contended that the Criminal Rules apply to the determination of these proceedings, and not the FCR. The applicant has not and, as explained below, could not comply with the Criminal Rules. The applicant has commenced these proceeding by filing an originating application and statement of claim, which is susceptible to an application for summary dismissal. As is apparent from s 31A of the FCA Act “criminal proceedings” are excluded from the scope of an application for summary judgment. However, these proceedings do not fall within that concept, as defined. That term is defined in sch 1 of the Criminal Rules as meaning any of the following proceedings: (a) criminal appeal proceedings, (b) indictable primary proceedings, and (c) summary criminal proceedings. Relevantly, “indictable primary proceedings” is defined in s 23AB of the FCA Act: see Note 2 to r 1.11 of the Criminal Rules. These proceeding brought by the applicant do not fall within the scope of s 23AB and plainly nor does it fall within the scope of “criminal appeal proceedings” or “summary criminal proceedings”. Accordingly, these proceedings are not criminal proceedings within the definition of the FCA Act. It follows that there is no proper basis for the applicant’s assertion that s 31A of the FCA Act and r 26.01 of the FCR does not apply.
Ratio Decidendi
Legal Principle Established
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