Quach v Horvarth - [2022] NSWSC 248

Supreme Court

New South Wales

Medium Neutral Citation: Quach v Horvarth [2022] NSWSC 248
Hearing dates: 9 March 2022
Date of orders: 14 March 2022
Decision date: 14 March 2022
Jurisdiction: Common Law
Before: Campbell J
Decision:
(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;
(2) For clarity, vacate the hearing date of 28 April 2022;
(3) The plaintiff is to pay the defendant’s costs of the appeal;
(4) The plaintiff is to pay the Medical Council’s costs of his Notice of Motion filed on 16 February 2022;
(5) Liberty to apply for a special costs order within 14 days of today;
(6) Each of the Notices of Motion referred to in [10] of this judgment are otherwise dismissed.

Catchwords:
CIVIL PROCEDURE – summary disposal – dismissal of proceedings – frivolous or vexatious proceedings – order in place pursuant to Vexatious Proceedings Act 2008 – appeal without leave sought – contravention of vexatious proceedings order – appeal dismissed

Legislation Cited:
Health Care Complaints Act 1993 (NSW), s 99A
Health Practitioner Regulation National Law (NSW), s 138
Supreme Court Act 1970 (NSW), s 75A
Supreme Court Rules 1970 (NSW), Part 60, r 17
Uniform Civil Procedure Rules 2005 (NSW), rr 21.10, 34.1, 49.4, 49.8
Vexatious Proceedings Act 2008 (NSW), ss 4, 13, 16

Cases Cited:
Health Care Complaints Commission v Quach [2015] NSWCATOD 2
Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32
Kruger v Commonwealth of Australia (1997) 190 CLR 1; [1997] HCA 27
Quach v Health Care Complaints Commission [2016] NSWCA 49
Quach v Horvarth [2021] NSWSC 1401
Quach v Horvath (No 2) [2022] NSWSC 55
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
Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921
Wickstead v Browne (1992) 30 NSWLR 1

Texts Cited:
Medical Practice Act 1992 (NSW) (Repealed)

Category: Procedural rulings
Parties: Michael Van Thanh Quach (Plaintiff)
John Horvarth (Defendant)
Representation:
Counsel:
Michael Quach (Plaintiff in person)
D Hume (Defendant)
J Gatland (Third Party, Medical Council of NSW)
Solicitors:
Makinson d’Apice Lawyers (Defendant)
Health Professional Councils Authority (Third Party, Medical Council of NSW)

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

Court or tribunal:

Supreme Court, New South Wales

Jurisdiction:

Common Law

Citation:

[2021] NSWSC 1401

Date of Decision:

1 November 2021

Before:

Harrison AsJ

File Number(s):

2021/123675

Judgment

The currently pending proceeding in this Court is an appeal instituted by Notice of Motion in accordance with Rule 49.8 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”),…

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 248
Case: [2022] NSWSC 248
Decision Date: 14 March 2022

CaseChat Overview and Summary

In Quach v Horvarth, the respondent, Mr Horvarth, appealed against the dismissal of his claim by the Federal Circuit and Family Court of Australia. The appellant, Mr Quach, had applied for an order pursuant to the Vexatious Proceedings Act 2008 to prohibit the respondent from instituting or prosecuting further proceedings against him without the leave of the court. The appeal was brought without leave, which was required under the relevant legislation. The primary legal issue before the court was whether the appeal itself constituted a contravention of the Vexatious Proceedings Order (VPO). The court considered whether the appeal, which was brought without leave, could be considered as further proceedings against the appellant in contravention of the VPO. The court noted that the appeal was not only brought without leave but also proceeded on the basis that the appeal itself was not subject to the requirements of the VPO. The court held that the appeal constituted a contravention of the VPO as it was brought without leave and the respondent had proceeded with the appeal on the basis that it was not subject to the requirements of the VPO. The appeal was dismissed, and the court found that the appeal was frivolous and vexatious. The court emphasised the importance of complying with the requirements of the VPO, including obtaining leave to appeal, and the potential consequences of failing to do so.

Orders