Quach v Marks

Case [2022] FCA 511


FEDERAL COURT OF AUSTRALIA

Quach v Marks [2022] FCA 511   

File numbers: ACD 25 of 2021
ACD 57 of 2021
Judgment of: YATES J
Date of judgment: 10 May 2022
Catchwords: PRACTICE AND PROCEDURE – application for joinder as a party to an application to extend time and for leave to appeal – application for joinder as a party to an application for leave to appeal – applications granted
Legislation:

Federal Court of Australia Act 1976 (Cth) s 28(1)(b)

Judiciary Act 1903 (Cth) s 38(b)

Federal Court Rules 2011 (Cth) rr 1.32, 9.12, 36.31

Cases cited:

News Limited v Australian Rugby League Football Limited [1996] FCA 870; 64 FCR 410

Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52

Quach v Marks [2021] FCA 335

Quach v Marks (No 2) [2021] FCA 922

Division: General Division
Registry: Australian Capital Territory
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 16
Date of last submissions: 22 October 2021
Date of hearing: Determined on the papers
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: The Respondent filed a submitting notice save as to costs
Solicitor for the Attorney-General for New South Wales: Ms K Smith of Crown Solicitor’s Office

ORDERS

ACD 25 of 2021
ACD 57 of 2021
BETWEEN:

DR MICHAEL VAN THANH QUACH

Applicant

AND:

FRANK MARKS

Respondent

ORDER MADE BY:

YATES J

DATE OF ORDER:

10 MAY 2022

THE COURT ORDERS THAT:

1.The Attorney-General for New South Wales be joined as a respondent in ACD 25 of 2021 and ACD 57 of 2021.

2.In ACD 25 of 2021, the applicant file and serve any further affidavit on which he seeks to rely, a draft notice of appeal, and a written outline of submissions not exceeding 5 pages, in support of his application to extend time and for leave to appeal, by 4.00 pm on 1 June 2022.

3.In ACD 57 of 2021, the applicant file and serve any further affidavit on which he seeks to rely, a draft notice of appeal, and a written outline of submissions not exceeding 5 pages, in support of his application for leave to appeal, by 4.00 pm on 1 June 2022.

4.In ACD 25 of 2021, the Attorney-General for New South Wales file and serve any further affidavit on which he seeks to rely, and a written outline of submissions in answer not exceeding 5 pages, by 4.00 pm on 22 June 2022.

5.In ACD 57 of 2021, the Attorney-General for New South Wales file and serve any further affidavit on which he seeks to rely, and a written outline of submissions in answer not exceeding 5 pages, by 4.00 pm on 22 June 2022.

6.With respect to any affidavit or submissions in reply in ACD 25 of 2021, the applicant file and serve such affidavit, or a written outline of such submissions not exceeding 3 pages, by 4.00 pm on 6 July 2022.

7.With respect to any affidavit or submissions in…

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Quach v Marks [2022] FCA 511
Case
[2022] FCA 511
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CaseChat Overview and Summary

The matter of Quach v Marks was heard in the Federal Court of Australia, where the primary issue revolved around an application for joinder as a party in two separate applications, one seeking an extension of time and leave to appeal, and the other solely for leave to appeal. The applicant, Quach, sought to join the Attorney-General for New South Wales as a respondent in these applications, which pertain to cases ACD 25 of 2021 and ACD 57 of 2021. The court was tasked with determining whether the Attorney-General should be joined as a party to these applications and if so, what procedural steps should follow.

The legal issues before the court included the appropriateness of the joinder of the Attorney-General, the procedural fairness in allowing the applicant to present further evidence and submissions, and the setting of a timeline for these submissions to be filed and served. The court also needed to consider the costs associated with these applications and how they should be allocated between the parties. The applicant's request to extend time and for leave to appeal, as well as the separate application for leave to appeal, required careful consideration of the merits and procedural history of the cases.

In its decision, the court found that it was appropriate for the Attorney-General to be joined as a respondent in both applications. The court acknowledged the importance of ensuring all relevant parties were involved in the proceedings and considered it procedurally fair to allow the applicant to present additional affidavits, a draft notice of appeal, and written outlines of submissions within specified deadlines. The court set detailed timelines for the filing and serving of these documents and ordered the applications to be listed for a hearing at a future date. Additionally, the court ordered the applicant to pay the costs of the Attorney-General in relation to the interlocutory applications. These orders were made to facilitate a fair and efficient resolution of the applications, ensuring all parties had an opportunity to be heard and to present their cases fully.

Orders

Orders of the court

1. The Attorney-General for New South Wales be joined as a respondent in ACD 25 of 2021 and ACD 57 of 2021.

2. In ACD 25 of 2021, the applicant file and serve any further affidavit on which he seeks to rely, a draft notice of appeal, and a written outline of submissions not exceeding 5 pages, in support of his application to extend time and for leave to appeal, by 4.00 pm on 1 June 2022.

3. In ACD 57 of 2021, the applicant file and serve any further affidavit on which he seeks to rely, a draft notice of appeal, and a written outline of submissions not exceeding 5 pages, in support of his application for leave to appeal, by 4.00 pm on 1 June 2022.

4. In ACD 25 of 2021, the Attorney-General for New South Wales file and serve any further affidavit on which he seeks to rely, and a written outline of submissions in answer not exceeding 5 pages, by 4.00 pm on 22 June 2022.

5. In ACD 57 of 2021, the Attorney-General for New South Wales file and serve any further affidavit on which he seeks to rely, and a written outline of submissions in answer not exceeding 5 pages, by 4.00 pm on 22 June 2022.

6. With respect to any affidavit or submissions in reply in ACD 25 of 2021, the applicant file and serve such affidavit, or a written outline of such submissions not exceeding 3 pages, by 4.00 pm on 6 July 2022.

7. With respect to any affidavit or submissions in reply in ACD 57 of 2021, the applicant file and serve such affidavit, or a written outline of such submissions not exceeding 3 pages, by 4.00 pm on 6 July 2022.

8. The application to extend time and for leave to appeal in ACD 25 of 2021, and the application for leave to appeal in ACD 57 of 2021, be listed for hearing on a date to be fixed.

9. The applicant pay the costs of the Attorney-General for New South Wales in respect of the first interlocutory application and the second interlocutory application referred to in the reasons for judgment published today.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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