Quach v Marks

[2020] NSWSC 524

Supreme Court

New South Wales

Medium Neutral Citation:	Quach v Marks [2020] NSWSC 524
Hearing dates:	11 May 2020
Date of orders:	11 May 2020
Decision date:	11 May 2020
Jurisdiction:	Common Law
Before:	Fagan J
Decision:	(1) Leave is granted to the Attorney General to file in court the notice of motion seeking leave to be joined as second defendant to the proceedings and the affidavit in support affirmed by Ms Tram Nguyen on 11 May 2020. (2) Declare that the proceeding commenced by the filing of the plaintiff’s summons herein has been instituted in contravention of s 13(1) of the Vexatious Proceedings Act 2008 (NSW), by reason of order (5) made by the Court of Appeal on 20 October 2017 in proceeding entitled Quach v NSW Health Care Complaints Commission 2015/158685. (3) Declare that these proceedings have been stayed by force of s 13(2) of the Vexatious Proceedings Act 2008 (NSW) from their inception and are taken to have been dismissed with effect from 30 March 2020. (4) Order that the plaintiff pay the defendant’s costs of the proceeding and the Attorney General’s costs of his application by notice of motion filed 11 May 2020 to be joined as second defendant to the summons.
Catchwords:	CIVIL PROCEDURE – parties – vexatious litigants – leave to institute proceedings refused
Legislation Cited:	Vexatious Proceedings Act 2008 (NSW)
Cases Cited:	Quach v Health Care Complaints Commission [2020] NSWSC 523 Health Care Complaints Commission v Quach [2015] NSWCATOD 2 Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32
Category:	Procedural and other rulings
Parties:	Michael Quach (plaintiff) Francis Marks (defendant)
Representation:	Counsel: N/A N/A   Solicitors: Michael Quach (self-represented plaintiff) Crown Solicitors Office
File Number(s):	2020/78064
Publication restriction:	No

Judgment

1. In this proceeding Mr Quach is self-represented. By his summons filed on 2 March 2020 he claims the following orders:

1   Finding the [sic] Frank Marks is in contempt of court, by breaching a Court of Appeal order by way of an undertaking by his employer, NSW Civil and Administrative Tribunal, to produce the documents sought in the Notice to Produce 18 May 2014.

2   Order transcript for NCAT file numbers 2014/382560-001 and 2014/382581-001 HCCC v Quach on the 27 February 2020.

3   Application for an interstate judge to hear this matter.

4.   Arrest warrant for Frank Marks contempt of court.

In paragraph 5 of the summons there are set out grounds for orders 1-4.

2. The proceeding is before the Court for consideration of whether Mr Quach requires leave to institute it, having regard to an order against him under the Vexatious Proceedings Act 2008 (NSW) made by the Court of Appeal on 20 October 2017 (see [14] below). I have found that leave is required under the Act and that the proceeding has been instituted in contravention of s 13(1). Accordingly, the summons is taken to have been stayed from the date of filing and to have been dismissed at the expiry of 28 days thereafter, that is, on 30 March 2020: s 13(2) and (3). I have found that there is no foundation for the proceeding and that leave would not have been granted if applied for. Accordingly, there would be no warrant for giving Mr Quach an opportunity to make an application under s 14 of the Act for the purpose of regularising the proceeding.

3. Mr Quach filed in this Division on 2 March 2020 another summons alleging contempt, upon similar particulars, against the Health Care Complaints Commission (“HCCC”) (Quach v Health Care Complaints Commission, Common Law Division, 2020/67368). For similar reasons I have declared that that proceeding has been stayed from its inception and is taken to have been dismissed from 30 March 2020: Quach v Health Care Complaints Commission [2020] NSWSC 523.

4. The defendant to the summons now before me is Acting District Court Judge Marks who presided in the Civil and Administrative Tribunal (“NCAT”) on the hearing of two complaints by the HCCC against Mr Quach for professional misconduct as a medical practitioner. The hearing commenced on 10 September 2014. Mr Quach was thereafter deregistered: Health Care Complaints Commission v Quach [2015] NSWCATOD 2; Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32. Those decisions were delivered by the Tribunal on 5 February 2015 and 21 April 2015 respectively.

5. The NCAT file numbers referred to in order 2 of Mr Quach’s summons are substituted numbers for the professional misconduct proceedings. The numbers originally designated were 1420065 (now 2014/382560-001) and 1420086 (now 2014/382581-001). The superseded original numbers are quoted in the Tribunal judgments referred to in the preceding paragraph. The two matters were before Marks ADCJ on 27 February 2020 for the hearing of an application brought by Mr Quach with respect to costs. It is asserted in par 5 of the summons now before me that on 27 February 2020 Mr Quach asked Marks ADCJ for his “credential in relations [sic] to his appearance on 10 September 2014 hearing”. The grounds state that “Frank Marks refused to produce any credentials to validate his appointment to” the hearing of the professional misconduct complaints.

6. The ground asserted with respect to order 2 is simply that NCAT has refused to provide a transcript of the hearing of 27 February 2020. Mr Quach has filed in this Court an affidavit in support of his summons, affirmed on 13 March 2020. In the proceeding on the related summons filed by Mr Quach against HCCC he has identified a letter from the Registrar of NCAT advising that no transcript had been prepared and that he could request a sound recording by completing a form that is available online.

7. In relation to order 1 Mr Quach has annexed to his affidavit a notice to produce that was prepared by himself, bearing the title Quach v NSW Civil and Administrative Tribunal, No 2015/131892. The heading of the notice names both the Court of Appeal and the Common Law Division. A proceeding was commenced by Mr Quach against HCCC and NCAT in the Common Law Division on 4 May 2015 and a Court file for that matter was opened with the number 2015/131892. On 22 March 2015 Wilson J ordered that the matter be transferred to the Court of Appeal. The transfer was effected on 28 May 2015 and Court of Appeal file number 2015/158685 was opened that day, with a listing for directions on 15 June 2015.

8. The notice to produce that Mr Quach has identified is not signed. It bears a date of 18 May 2015 and an appointed date for production of documents of 26 May 2015. It purports to have been issued pursuant to r 34 of the UCPR as a notice to produce returnable at a hearing or on a date fixed by the Court for return of subpoenas. Pursuant to r 34(1), the notice was required to be addressed to one of the defendants. The notice does not state to whom it is addressed. The notice required production of “all relevant evidentiary material relating to qualification of Acting Judge Frank Marks” and it specified in pars (a)-(d) four specific documents said to answer that general description.

9. In Court of Appeal proceeding 2015/158685 an affidavit of Ms Sarah Christian of the Crown Solicitor’s Office sworn 23 June 2015 was filed on behalf of the Attorney General. From this it is apparent that NCAT filed a submitting appearance in the Supreme Court proceedings on 8 May 2015 and that the notice to produce was served upon NCAT on 18 May 2015. On 1 June 2015 Mr Quach caused a subpoena to be issued in the Court of Appeal addressed to Ms Christian. She had the conduct of the matter on behalf of NCAT. The subpoena was returnable on 10 June 2015 and required production of the same documents as those called for in the notice to produce. The evidence does not show whether the subpoena was ever called upon.

10. Together with Ms Christian’s affidavit of 23 June 2015 the Attorney General filed a notice of motion in the Court of Appeal seeking to be joined as a respondent and applying to have the notice to produce set aside. An extract of the transcript of the hearing before Meagher JA in the Court of Appeal on 29 June 2015 has been tendered by Mr Quach. The Attorney General’s legal representative said this:

I don’t press order 3 which is to set aside a notice to produce served on NCAT. NCAT will produce documents in answer to the notice to produce but the Attorney General if joined to the proceeding wishes to be heard on any application by Mr Quach to inspect those documents […]. NCAT will produce the curriculum vitae sought in para 1(a) but the Attorney General wishes to be heard on inspection of that document. […] NCAT doesn’t have any documents in answer to para (b). It has two documents in answer to para (c) and as I understand it no documents in answer to para (d).

11. The Associate’s record for 29 June 2015 shows that the notice to produce was called upon, documents were produced, orders were made for the joinder of the Attorney General and the Attorney’s notice of motion filed on 23 June 2015 was otherwise dismissed. Meagher JA noted the following:

[That NCAT] produces three documents in answer to the plaintiff’s notice to produce dated 18 May 2015: one document within sub-paragraph 1(a) (headed “Curriculum Vitae – The Hon Francis Marks”) and two documents within sub-paragraph 1(c) (“headed “Appointment of a Principal Member …” and “Instrument of Appointment”).

12. His Honour granted restricted leave to Mr Quach to inspect some of the documents produced. Mr Quach now submits that what was said by the Attorney General’s representative as quoted at [10] above was an undertaking by NCAT to the Court, having the same effect as an order. He relies upon this as the “undertaking by [NCAT] to produce the documents” referred to at par 1 of his summons. Mr Quach’s contention is insupportable. There was no undertaking given on behalf of NCAT for future production of documents. The Attorney General’s representative merely described the documents held by NCAT that fell within the notice and then produced that material forthwith, before the Court. NCAT’s obligations under the notice to produce were thereby discharged.

13. Subsequent to the hearing in the Court of Appeal on 29 June 2015, Ms Christian filed a further affidavit on 19 October 2015 annexing additional documents that related to the appointment of Marks ADCJ to NCAT. Certified copies of these documents were annexed to yet a further affidavit sworn by Ms Christian on 15 January 2016. I infer that these additional documents came from the Attorney General rather than from NCAT. Their nature and content suggests that that would be the case.

14. On 20 October 2017 the Court of Appeal made the following order:

(5) Pursuant to s 87(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.

As noted at [5] above, the NCAT proceedings referred to in this order are those that were determined by the decisions of 5 February 2015 and 21 April 2015. They are the same proceedings now referred to in order 2 of Mr Quach’s summons.

15. Mr Quach’s summons against Marks ADCJ relates to both the subject matter of the professional misconduct proceedings against him before NCAT and to his proceedings against NCAT and HCCC in this Division and in the Court of Appeal (Court of Appeal proceeding 2015/158685). Hence, by operation of the vexatious proceedings order quoted above, the filing of the summons now before the Court would require leave. It does not appear to be necessary under the Act that either the question of whether leave is required under the particular order or the question of whether leave should be granted need be referred to the Court of Appeal.

16. Mr Quach has not applied for leave under s 14 of the Vexatious Proceedings Act but if he did I would refuse it on the ground that “there is no prima facie ground for the proceedings”: s 15(1)(c). The summons is frivolous and vexatious and no reasonable cause of action or foundation for the relief claimed is disclosed. Those conclusions follow from these circumstances:

1. There is no basis for the assertion that NCAT gave an enforceable undertaking, to the Court of Appeal or to any other court or person, for production of documents as described in the notice dated 8 May 2015.

2. An undertaking by NCAT, even if given, could not sustain an allegation of contempt on the part of Marks ADCJ for not producing documents. On its face the summons alleges an undertaking from a party other than the defendant; he could not be personally in contempt in for not discharging an undertaking of another person or entity.

3. With respect to the claim in order 2, there is no legal basis for this Court to direct Marks ADCJ to provide Mr Quach with a transcript of proceedings in NCAT.

17. For these reasons declarations will be made that the summons has been stayed and is taken to be dismissed. The plaintiff will be ordered to pay the defendant’s costs. The Attorney General filed a notice of motion seeking to be joined as a party to the proceedings. That joinder would have been appropriate if the summons was to proceed in any substantive way because Mr Quach brought his proceeding against a judicial officer in the officer’s personal name. In view of the declarations that will be made under the Vexatious Proceedings Act it is not necessary to proceed with the Attorney General’s application to be joined but the plaintiff should pay the costs of the notice of motion.

18. The declarations and orders to be entered are as follows:

1. Leave is granted to the Attorney General to file in court the notice of motion seeking leave to be joined as second defendant to the proceedings and the affidavit in support affirmed by Ms Tram Nguyen on 11 May 2020.

2. Declare that the proceeding commenced by the filing of the plaintiff’s summons herein has been instituted in contravention of s 13(1) of the Vexatious Proceedings Act 2008 (NSW), by reason of order (5) made by the Court of Appeal on 20 October 2017 in proceeding entitled Quach v NSW Health Care Complaints Commission 2015/158685.

3. Declare that these proceedings have been stayed by force of s 13(2) of the Vexatious Proceedings Act 2008 (NSW) from their inception and are taken to have been dismissed with effect from 30 March 2020.

4. Order that the plaintiff pay the defendant’s costs of the proceeding and the Attorney General’s costs of his application by notice of motion filed 11 May 2020 to be joined as second defendant to the summons.

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Decision last updated: 11 May 2020