Quach v Marks

[2021] FCA 335

FEDERAL COURT OF AUSTRALIA

Quach v Marks [2021] FCA 335  

File number:

ACD 44 of 2020

Judgment of:

ABRAHAM J

Date of judgment:

31 March 2021

Catchwords:

PRACTICE AND PROCEDURE – application by a non-party for leave to intervene – where respondent has filed submitting appearance –  whether the proposed intervener's contribution will be useful and different from the contribution of the principal parties

Legislation:

Civil and Administrative Tribunal Act 2013 (NSW)

Federal Court Rules 2011 (Cth) r 9.12

Cases cited:

Gedeon v Commissioner of NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120

Health Care Complaints Commission v Quach [2015] NSWCATOD 2

Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32

Markisic v Magistrate Heilpern [2011] NSWSC 410

Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10

Wu v Avin Operations Proprietary Limited (No 3) [2006] FCA 132

Division:

General Division

Registry:

New South Wales

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

13

Date of hearing:

15, 31 March 2021

Counsel for the Applicant:

Applicant appeared in person

Counsel for the Respondent:

Mr. D Birch

Solicitor for the Respondent:

NSW Crown Solicitor’s Office

ORDERS

ACD 44 of 2020

BETWEEN:

MICHAEL VAN THANH QUACH

Applicant

AND:

FRANK MARKS

Respondent

ORDER MADE BY:	ABRAHAM J
DATE OF ORDER:	31 MARCH 2021

THE COURT ORDERS THAT:

1.The Attorney General be granted leave to appear as an intervener in these proceedings.

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

REASONS FOR JUDGMENT

Revised from Transcript

ABRAHAM J:

1. In these proceedings, the applicant seeks relief in respect of decisions of the New South Wales Civil and Administrative Tribunal (NCAT) in Health Care Complaints Commission v Quach [2015] NSWCATOD 2 and Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32.

2. The respondent, the Honourable Francis Marks, is a principal member of NCAT and was a presiding member in the decisions about which the applicant complains. 

3. The applicant claims that:

   (1) Frank Marks made findings under the Health Insurance Act 1973 (Cth) without valid statutory authority, referring to Gedeon v Commissioner of NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120 (Gedeon), that commenced on 10 September 2014, and in the Health Care Complaints Communication v Quach [2015] NSWCATOD 2 and [2015] NSWCATOD 32; and

   (2) Frank Marks is guilty of dishonesty by ordering costs against the applicant in Health Care Complaints Communication v Quach [2015] NSWCATOD 2 and [2015] NSWCATOD 32, when he knew that he didn’t have the ability to order costs.

4. The respondent filed a submitting appearance in these proceedings on 1 December 2020.

5. The Attorney General for the State of New South Wales (the Attorney General) seeks an order that he be granted leave to intervene in this proceeding pursuant to r 9.12 of the Federal Court Rules 2011 (Cth). In support of that application, the Attorney General relies on…