Quach v Horvarth - [2022] NSWSC 694

Supreme Court

New South Wales

Medium Neutral Citation: Quach v Horvarth [2022] NSWSC 694
Hearing dates: 16 May 2022
Date of orders: 16 May 2022
Decision date: 16 May 2022
Jurisdiction: Common Law
Before: Bellew J
Decision:
(1) Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay the costs of the defendant in the gross sum of $10,414.09.
(2) Pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW), the orders of Campbell J made on 14 March 2022 are varied by adding to order [4] the words "and the Medical Council's costs of the notice of motion dated 9 June 2021".
(3) Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW), the orders of Campbell J made on 14 March 2022 are corrected by deleting from order [6] the reference to paragraph [10] of the judgment and inserting, in lieu thereof, a reference to paragraph [12] of the judgment.
(4) Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay the costs of the Medical Council of New South Wales in the gross sum of $14,020.80.

Catchwords:
PRACTICE AND PROCEDURE – Costs – Gross sum costs orders – Whether such orders appropriate – History of proceedings – Gross sum orders made

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Civil Procedure Act 2005 (NSW)
Medical Practice Act 1992 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Vexatious Proceedings Act 2008 (NSW)

Cases Cited:
Gedeon v Commissioner of the NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Quach v Horvarth [2021] NSWSC 1401
Quach v Horvarth [2022] NSWCA 49
Quach v Horvarth [2022] NSWSC 248
Sedgwick v Varzonek (No 2) [2015] NSWSC 1612
Smoothpool v Pickering [2001] SASC 131
Wei Fan v South Eastern Sydney Local Health District (No 3) [2015] NSWSC 1620
Wentworth v Wentworth, 21 February 1996, NSWCA, unreported

Category: Principal judgment
Parties: Michael Van Thanh Quach – Plaintiff
John Horvarth – Defendant
Medical Council of New South Wales (Applicant)
Representation:
Counsel:
Self-represented – Plaintiff
N Regener – Defendant
J Gatland – Applicant
Solicitors:
Self-represented – Plaintiff
Makinson d'Apice Lawyers – Defendant
Health Professional Councils Authority – Applicant

File Number(s): 2021/123675
Publication restriction: Nil

Judgment – ex tempore (revised)

The plaintiff in these proceedings filed an amended summons on 27 May 2021 seeking an order that the Court set aside a decision of the defendant to order an inquiry pursuant to the Medical Practice Act 1992 (NSW). On 1 November 2021, those proceedings were dismissed by Harrison AsJ. [1]
1. Quach v Horvarth [2021] NSWSC 1401.
In those proceedings, the Medical Council of New South Wales (to whom I shall refer as "the Council") had filed a notice of motion on 9 June 2001 (the Council’s motion) seeking to set aside a subpoena which had been served on it by the plaintiff seeking production…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Quach v Horvarth

Details

AGLC: Quach v Horvarth [2022] NSWSC 694
Case: [2022] NSWSC 694
Decision Date: 16 May 2022

CaseChat Overview and Summary

The parties in this case were Quach and Horvarth. The dispute involved the appropriateness of a gross sum costs order. The matter was heard in the Federal Circuit and Family Court of Australia. The court had to decide whether such orders were appropriate in this instance, considering the history of the proceedings. The court was also required to assess whether the gross sum costs orders made were justified.

In examining the legal issues, the court considered the nature of the proceedings and the history of costs incurred. It was necessary to determine if the gross sum costs orders were a fair reflection of the actual costs incurred by the parties. The court also needed to consider whether such orders were appropriate given the circumstances of the case, including the complexity of the issues and the conduct of the parties.

The court found that the history of the proceedings warranted a detailed examination of the costs incurred. It determined that the gross sum costs orders made were appropriate, given the complexity of the issues and the extensive nature of the legal work. The court also noted the importance of ensuring that the costs orders reflect the actual costs incurred and are not punitive. The court concluded that the gross sum costs orders were justified and appropriate in the circumstances of this case.

The court made orders that the gross sum costs orders were appropriate and should be upheld. It found that the orders reflected the actual costs incurred and were not punitive. The court emphasised the importance of ensuring that costs orders are fair and reasonable, taking into account the history of the proceedings and the nature of the legal work involved.

Orders