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

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.

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…

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.

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Details

Case: [2020] NSWSC 524
Decision Date: 11 May 2020

CaseChat Overview and Summary

The case of Quach v Marks was heard by the Federal Circuit and Family Court of Australia. The dispute arose between the plaintiff, Quach, and the defendant, Marks. Quach sought to institute proceedings against Marks in the Federal Circuit and Family Court, but the court had previously declared Quach to be a vexatious litigant. This declaration precluded Quach from instituting proceedings without leave from the Court. Quach applied for leave to institute the proceedings against Marks, which the court was required to decide.

The central legal issue in this case was whether the court should grant leave to Quach, who had been declared a vexatious litigant, to institute proceedings against Marks. The court considered the criteria for granting leave under the relevant legislation and the previous history of Quach's litigation against various defendants. The court had to balance the need to protect the court's resources and other parties from unnecessary litigation with the right of access to the court. The court also considered the merits of Quach's claims against Marks.

The court found that the criteria for granting leave were not satisfied in this case. The court noted that Quach had a history of instituting numerous proceedings without merit and that the proposed proceedings against Marks appeared to be part of a pattern of vexatious litigation. The court emphasised the importance of protecting the court's resources and other parties from unnecessary litigation, particularly when the litigant has a history of abusing the judicial process. The court held that Quach's application for leave to institute proceedings against Marks should be refused.

The court ordered that Quach's application for leave to institute proceedings against Marks be refused. The court also noted that Quach should seek leave from the Court before instituting any further proceedings. This decision reinforces the importance of protecting the court's resources and other parties from vexatious litigation. It also highlights the need for litigants to comply with the court's orders and to respect the judicial process.

Orders