Quach v Horvarth

[2022] NSWCA 49

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Quach v Horvarth [2022] NSWCA 49

Hearing dates:

28 March 2022

Date of orders:

28 March 2022

Decision date:

28 March 2022

Before:

Basten JA

Decision:

Dismiss the notice of appeal e-filed on 15 March 2022 as incompetent.

Catchwords:

PRACTICE AND PROCEDURE – vexatious proceedings order – prohibition on commencement of fresh proceedings in specified matters – judicial review application dismissed in a specified matter – fresh claim for damages based on unlawfulness of same conduct – claim dismissed under vexatious proceedings order – notice of appeal dismissed as incompetent under vexatious proceedings order

Legislation Cited:

Medical Practice Act 1992 (NSW), Sch 1, cl 11

Supreme Court Act 1970 (NSW), s 69

Vexatious Proceedings Act 2008 (NSW), ss 8, 13

Cases Cited:

Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32

Health Care Complaints Commission v Quach [2015] NSWCATOD 2

Quach v Health Care Complaints Commission [2016] NSWCA 49

Quach v Horvarth [2021] NSWSC 1401

Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10

Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267

Category:

Procedural rulings

Parties:

Michael Van Thanh Quach (Applicant)
Professor John Horvarth (Respondent)

Representation:

Counsel:
Applicant unrepresented

Solicitors:
Applicant unrepresented

File Number(s):

2022/74091

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2022] NSWSC 248

Date of Decision:

9 March 2022

Before:

Campbell J

File Number(s):

2021/123675

Judgment

1. BASTEN JA: In 1998 Mr Quach applied to the Medical Board of New South Wales for registration as a medical practitioner. He was academically qualified, but there was an issue as to whether he suffered from a mental impairment. It appears that he was registered as an intern in September 1999, subject to conditions.

2. On 19 January 1999, the President of the Medical Board, in accordance with the provisions of cl 11 of Sch 1 of the Medical Practice Act 1992 (NSW) (since repealed) advised that an inquiry would be held into the eligibility of Dr Quach to be registered under the provisions of the Act.

3. He subsequently commenced practice, but was the subject of complaints to the Health Care Complaints Commission. The Commission in turn filed notices of complaint with the Civil and Administrative Tribunal (NSW), Occupational Division, which was the successor to the Medical Tribunal. The complaints were upheld and, on 5 February 2015, the Tribunal made findings of unsatisfactory professional conduct and professional misconduct. ^[1] On 21 April 2015 the Tribunal ordered that Dr Quach’s registration be cancelled, providing further that there be no application for review for a period of seven years from that date. An order prohibiting him from providing any health service was made. ^[2]

   1. Health Care Complaints Commission v Quach [2015] NSWCATOD 2.

   2. Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32.

4. Mr Quach then commenced proceedings by way of summons in the supervisory jurisdiction of the Court under s 69 of the Supreme Court Act 1970 (NSW). On 10 February 2016 the Court made orders dismissing the amended summons in those proceedings subject to one qualification, namely that “[p]aragraph 3 of the notice of motion filed 21 October 2015 be stood over to a date to be advised for directions before the Registrar.”^[3]

   3. Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10.

5. The notice of motion of 21 October 2015 (par 3) came before Meagher JA on 9 March 2016. In a judgment delivered on 21 March 2016,^[4] Meagher JA identified the scope and nature of that motion in the following terms:

“[7]   By paragraph 3 of this motion, Mr Quach applies for judicial review of a decision of the New South Wales Medical Board (Medical Board) given on 23 September 1999. That Board was constituted by the Medical Practice Act 1992 (NSW), s 129. That Act was repealed by the Health Practitioner Regulation Amendment Act 2010 (NSW), Sch 3, with effect from 1 July 2010.

[8]   This application should be dismissed because it cannot be brought by way of motion in the existing proceedings, and because the Tribunal or other body which made the decision, or at least a party representing that body, must be joined as a defendant.

[9] The motion seeks an order that a decision of the Medical Board, made more than 16 years ago, be declared void. That application is made by notice of motion in proceedings which seek judicial review of the two NCAT decisions. The Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provide that proceedings for relief of the kind sought must be commenced by summons and accompanied by material which includes the reasons (if any) for the challenged decision and written submissions of the applicant: UCPR, rr 6.4(1)(b1); 51.45(1),(3); 59.3(1). UCPR, r 59.3(4) requires that the body or person responsible for the decision under review be joined as a defendant. Neither the Medical Board nor any other entity has been joined to the application as the relevant decision-maker, or as representing that decision-maker. The Commission did not make the 1999 decision and would not be the, or a proper responding party to Mr Quach’s proposed claim for relief.

[10]   There are also fundamental difficulties to Mr Quach succeeding in the proposed claim, assuming it otherwise has some merit. They include that the decision sought to be reviewed was made over 16 years ago; that the Board’s decision which involved the imposition of conditions on Mr Quach’s registration as a medical practitioner, ceased long ago to have any continuing effect; and that Mr Quach did not pursue his right to appeal to the Medical Tribunal against the Board’s decision (see Medical Practice Act, s 17).”

4. Quach v Health Care Complaints Commission [2016] NSWCA 49.

6. Order (1) made on 21 March 2016 dismissed paragraph 3 of the notice of motion filed 21 October 2015.

7. On 20 October 2017 this Court made orders under the Vexatious Proceedings Act 2008 (NSW) prohibiting Mr Quach from instituting any further proceedings in relation to certain earlier proceedings. ^[5] Order (5) was in the following terms:

“(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.”

5. Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267.

8. The proceedings the subject of orders in this Court in 2016 were proceedings 2015/158685. The matter dealt with by Meagher JA on 21 March 2016 was a motion in that matter.

9. Pursuant to an amended summons filed in the Common Law Division on 27 May 2021, Mr Quach claimed damages as a result of Dr Horvarth’s notification of an inquiry under the provisions of the Medical Practice Act, on 19 January 1999. The matter was heard by Harrison AsJ who summarily dismissed the proceedings on 1 November 2021. ^[6] However, she did so having regard to the merits of the proceedings and not by reference to any prohibition under the Vexatious Proceedings Act. It appears that she was not aware of the orders made by this Court in 2017 under that Act.

   6. Quach v Horvarth [2021] NSWSC 1401.

10. Mr Quach appealed from the judgment of Harrison AsJ to a judge in the Division. The appeal was heard by Campbell J on 9 March 2022, judgment being delivered five days later on 14 March 2022. ^[7] The substantive order made in that proceeding was as follows:

“(1) Under s 13(4) Vexatious Proceedings Act 2008 (NSW), declare that the plaintiff’s appeal instituted by Notice of Motion filed on 8 November 2021 is a proceeding to which subsections (2) and (3) of s 13 of the said Act apply and accordingly the appeal is taken to have been dismissed by the Court upon the expiration of the period of 28 days after 8 November 2021.”

7. Quach v Horvarth [2022] NSWSC 248.

11. The following day, that is 15 March 2022, Mr Quach filed a notice of appeal in this Court commencing proceedings 2022/74091. Two days later, on 17 March 2022 the Registrar wrote to Mr Quach identifying a number of problems with the notice of appeal, the first of which was that if Campbell J were correct in his understanding of the order under the Vexatious Proceedings Act, and the nature of the proceeding before him, the matter was caught by the order made by this Court in 2017. It would follow that the notice of appeal would be taken to be dismissed 28 days after it was filed, namely on 12 April 2022.

12. On 24 March 2022 Mr Quach filed a submission in the following terms:

“In my respectful submission, the notice of appeal (as this case is) is allowed as an exception in Order 5 of Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal NSWCA 267,

‘…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’.”

13. That submission was misconceived. The order in fact made, as set out above, did not include the exception relied upon by Mr Quach. That is, the order as appeared on the coversheet of the judgment and as entered on JusticeLink, did not contain that exception. It is true an exception in those terms was proposed by Gleeson JA at [130]. However, Simpson JA, with whom Sackville AJA agreed, proposed a different order. Simpson JA stated:

“[136] 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.”

Accordingly, the order of the Court (by majority) did not include the exception.

14. This may not, in any event, have mattered unless the present proceedings were properly characterised as such an appeal. At least on their face, they did not constitute an appeal, but a claim for damages in circumstances where the Court had declined to grant relief in its supervisory jurisdiction, setting aside the notice by which the inquiry into Mr Quach’s mental heath was instituted in 1999. However, the effect of the proposed claim for damages is to challenge in a different form the lawfulness of Dr Horvarth’s conduct in 1999. That was a matter raised in proceedings 2015/158685 in this Court and disposed of by Meagher JA on 21 March 2016.

15. It follows that the declaration made by Campbell J on 14 March 2022 in respect of the proceedings in the Division was correct. It also follows that the notice of appeal filed in this Court, challenging that decision, was subject to the prohibition imposed by the order made by this Court in 2017, being order (5), under the Vexatious Proceedings Act.

16. The appropriate course is to dismiss the notice of appeal as incompetent. The respondent has not been troubled by the need to take any step in the purported proceeding and therefore there should be no order as to costs.

17. The Court orders:

Dismiss the notice of appeal e-filed on 15 March 2022 as incompetent.

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Endnotes

Decision last updated: 28 March 2022