FEDERAL COURT OF AUSTRALIA
Quach v Marks (No 2) [2022] FCA 1335
File numbers: ACD 25 of 2021
ACD 57 of 2021Judgment of: YATES J Date of judgment: 11 November 2022 Catchwords: PRACTICE AND PROCEDURE – applications for leave to appeal from decisions of a single judge of the Court – applications refused Legislation: Evidence Act 1995 (Cth) s 91
Federal Court of Australia Act 1976 (Cth) s 31A(2)
Health Insurance Act 1973 (Cth)
Federal Court Rules 2011 (Cth) rr 9.12, 13.01, 26.01, 35.01
Civil and Administrative Tribunal Act 2013 (NSW)
Health Practitioner Regulation National Law 2009 (NSW)
Cases cited: Gedeon v New South Wales Crime Commission [2008] HCA 43; 236 CLR 120
Hamod v New South Wales (2002) 188 ALR 659
Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32
Health Care Complaints Commission v Quach [2015] NSWCATOD 2
Hurd v Zomojo Pty Ltd [2013] FCA 581
Qantas Airways Ltd v Lustig [2015] FCA 253; 228 FCR 148
Quach v Marks (No 2) [2021] FCA 922
Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267
Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10
Rana v Google Inc [2017] FCAFC 156; 254 FCR 1
Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424
Division: General Division Registry: Australian Capital Territory National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 48 Date of hearing: 2 November 2022 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: The First Respondent filed a submitting notice Counsel for the Second Respondent: Mr D Birch Solicitor for the Second Respondent: Crown Solicitor’s Office ORDERS
ACD 25 of 2021
ACD 57 of 2021BETWEEN: DR MICHAEL VAN THANH QUACH
Applicant
AND: FRANK MARKS
First Respondent
ATTORNEY GENERAL FOR NEW SOUTH WALES
Second Respondent
ORDER MADE BY:
YATES J
DATE OF ORDER:
11 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The application for an extension of time and leave to appeal in ACD 25 of 2021 be dismissed.
2.The application for leave to appeal in ACD 57 of 2021 be dismissed.
3.The applicant pay the costs of the Attorney General for New South Wales of and incidental to each application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
YATES J:
INTRODUCTION
There are two applications for leave to appeal presently before the Court, one of which requires an extension of time. Both applications arise out of judgments given in proceeding ACD 44 of 2020.
In proceeding ACD 44 of 2020, the present applicant, Michael Van Thanh Quach, sought 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
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CaseChat Overview and Summary
This case involves an application for leave to appeal against a decision of a single judge of the Federal Court of Australia. The applicant, Mr Quach, had previously sought judicial review of decisions made by the New South Wales Civil and Administrative Tribunal (NCAT) in disciplinary proceedings against him. The NCAT found that Mr Quach was guilty of professional misconduct and other serious allegations and subsequently cancelled his registration as a medical practitioner. Mr Quach had made numerous unsuccessful applications for judicial review of the NCAT decisions in various courts, including the Federal Court.
The legal issues before the court were whether the applicant had established that the primary judge had made an error of law in dismissing his proceeding and whether the application for leave to appeal had prospects of success. Specifically, the applicant argued that the primary judge had erred in law by accepting evidence of the NCAT decisions, which he claimed were inadmissible under s 91 of the Evidence Act 1995 (Cth). The court considered whether the application met the criteria for granting leave to appeal under r 44.2 of the Federal Court Rules 2011.
The court held that the application did not meet the criteria for leave to appeal. The court found that the primary judge had not erred in law in accepting the evidence of the NCAT decisions, as the decisions were not being used to prove the facts in issue in those proceedings, but rather to demonstrate the history of the case and the applicant's previous unsuccessful attempts to challenge the NCAT decisions. The court also found that the applicant had not demonstrated that the appeal had prospects of success, as the arguments raised were essentially a reiteration of previous arguments that had already been rejected by the courts. The court held that the application was an abuse of process and dismissed both applications for leave to appeal. The court also ordered the applicant to pay the costs of the Attorney General for New South Wales in relation to each application.
This decision highlights the importance of meeting the criteria for leave to appeal and the potential consequences of making an application that is an abuse of process. It also underscores the principle that courts will not entertain repetitive or vexatious litigation, particularly where the applicant has been previously unsuccessful in challenging the same decisions in other courts.
The legal issues before the court were whether the applicant had established that the primary judge had made an error of law in dismissing his proceeding and whether the application for leave to appeal had prospects of success. Specifically, the applicant argued that the primary judge had erred in law by accepting evidence of the NCAT decisions, which he claimed were inadmissible under s 91 of the Evidence Act 1995 (Cth). The court considered whether the application met the criteria for granting leave to appeal under r 44.2 of the Federal Court Rules 2011.
The court held that the application did not meet the criteria for leave to appeal. The court found that the primary judge had not erred in law in accepting the evidence of the NCAT decisions, as the decisions were not being used to prove the facts in issue in those proceedings, but rather to demonstrate the history of the case and the applicant's previous unsuccessful attempts to challenge the NCAT decisions. The court also found that the applicant had not demonstrated that the appeal had prospects of success, as the arguments raised were essentially a reiteration of previous arguments that had already been rejected by the courts. The court held that the application was an abuse of process and dismissed both applications for leave to appeal. The court also ordered the applicant to pay the costs of the Attorney General for New South Wales in relation to each application.
This decision highlights the importance of meeting the criteria for leave to appeal and the potential consequences of making an application that is an abuse of process. It also underscores the principle that courts will not entertain repetitive or vexatious litigation, particularly where the applicant has been previously unsuccessful in challenging the same decisions in other courts.
Orders
Orders of the court
1. The application for an extension of time and leave to appeal in ACD 25 of 2021 be dismissed.
2. The application for leave to appeal in ACD 57 of 2021 be dismissed.
3. The applicant pay the costs of the Attorney General for New South Wales of and incidental to each application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
On 10 May 2022, over the applicant’s objection, I made an order that the Attorney General be joined as a respondent in proceedings ACD 25 of 2021 and ACD 57 of 2021. I also made other procedural orders, including that the parties file written outline of submissions in relation to the two applications for leave to appeal: Quach v Marks [2022] FCA 511. BACKGROUND There have been a number of cases brought by the applicant in respect of the NCAT decisions. The relevant history is summarised in Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267 at [2] – [8]:2 A brief outline of the background to the show cause matters is as follows. Mr Quach was a medical practitioner. The subject matter of the proceedings before NCAT involved two notices of complaint lodged against Mr Quach by the Health Care Complaints Commission (the Commission), one in June 2013; the other in January 2014. The Notices of Complaint contained ten separate complaints against Mr Quach, including complaints of professional misconduct, impairment and a lack of sufficient mental capacity, knowledge and skill to practise as a health practitioner. There was a degree of procedural complexity because the dates of the two Notices of Complaint straddled the abolition of the Medical Tribunal of New South Wales and the establishment of NCAT on 1 January 2014. The first Notice of Complaint was lodged with the Medical Tribunal and the second with NCAT.3 The proceedings before NCAT were dealt with in two stages: the first may be referred to as the disciplinary or Stage One proceeding; the second may be referred to as the protective orders or Stage Two proceeding.4 Mr Quach and the Commission were both legally represented during the disciplinary proceeding. After the final day of argument on 19 December 2014, the Principal Member delivered an ex tempore judgment in which he specified the conditions to be imposed on Mr Quach's licence on an interlocutory basis pending argument and decision in the Stage Two proceeding. On 9 January 2015, the matter was relisted (it appears at the request of the Commission) before the Principal Member, sitting alone. Mr Quach represented himself on that day. Following that hearing, the Principal Member amended the form of the interlocutory conditions.5 On 5 February 2015, NCAT delivered its reasons in the disciplinary proceeding: Health Care Complaints Commission v Quach [2015] NSWCATOD 2 (Stage One decision). NCAT made findings that each of the ten complaints had been made out. NCAT also made two findings of professional misconduct within the meaning of Health Practitioner Regulation National Law 2009 (NSW) (National Law), s 139E and findings of “impairment” and lack of “competence” to practise by reason of that impairment under the National Law, ss 5 and 139: Stage One decision at [334], [335], [366], [367], [419], [420] and [422]. A Notice of Decision was issued by NCAT on 11 February 2015.6 On 21 April 2015, NCAT delivered its reasons in the protective orders proceeding: Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32) (Stage Two decision). NCAT made orders cancelling Mr Quach’s registration as a medical practitioner, and precluding any application for review for a period of seven years, and prohibiting him from providing any health service on a public, private or volunteer basis.7 Prior to NCAT's Stage Two decision, Mr Quach commenced two proceedings in February 2015 by way of judicial review of NCAT’s Stage One decision, including the interlocutory orders made on 19 December 2014 and 9 January 2015. Those proceedings were unsuccessful: Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63 (Quach v NCAT (No 1)). In May 2015, Mr Quach commenced a further proceeding by way of judicial review of NCAT’s Stage One decision and Stage Two decision. That proceeding was also unsuccessful: Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10 (Quach (No 1)).8 Not being satisfied with the decisions of this Court rejecting his judicial review applications, Mr Quach sought to re-agitate his contentions by making numerous further applications by way of notice of motion in this Court. Each of those further applications was unsuccessful. The nature of those applications are summarised below.
Evidence
Evidence Before The Court
The draft notice of appeal contains the following ground: 1. Pursuant to Section 91 of the Evidence Act,“91 Exclusion of evidence of judgments and convictions(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose”.Federal Court Rule 26.01(1) and (2)(b), cannot be satisfied by relying on judgements in an Australian or overseas proceeding. Therefore, the Affidavit of Kyle Hudson 15 April 2021 is not admissible because it relies on Australian and overseas proceedings to prove Federal Court rule 26.01(1) and (2)(b), “the facts and circumstances relied on to support those grounds” for summary dismissal.(Errors in original.) The reference, in this ground, to the affidavit of Kyle Hudson is to an affidavit that was read in support of the Attorney General’s interlocutory application. Amongst other documents, the affidavit annexed copies of the NCAT decisions. The applicant opposed the affidavit being read on the basis that, by reason of s 91 of the Evidence Act 1995 (Cth), the NCAT decisions were not admissible to prove that Mr Marks was qualified to sit on NCAT. Section 91 provides:(1)Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.(2)Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.Note: Section 178 (Convictions, acquittals and other judicial proceedings) provides for certificate evidence of decisions. The primary judge rejected the applicant’s objection on the basis that s 91 was not engaged; the tender of the NCAT decisions was not for the purpose of proving that Mr Marks was qualified to sit on NCAT. In his written outline of submissions, the applicant addresses this ground as follows: The decision of Mr Frank Marks in Health Care Complaints Commission v Michael Van Thanh Quach [2015] NSWCATOD 2 is not admissible as evidence of a fact for the purposes of summary dismissal. The applicant did not provide, as a matter of substance, any greater elaboration of this proposed ground in oral argument other than to refer to the fact that, in the proceeding below, the Attorney General made the following submission, based on Mr Hudson’s affidavit, which the primary judge subsequently accepted: … the Court should have little difficulty in concluding that the Applicant’s claim is colourable in the sense that it is made for “the improper purpose of ‘fabricating’ jurisdiction”. The Court can be fortified in concluding that the claim has invoked the Health Insurance Act for the improper purpose of fabricating federal jurisdiction, because the Applicant has exhausted his means of challenging NCAT’s decisions in the NSW court system, and indeed has been declared a vexatious litigant in respect of those and earlier proceedings, which has the effect of imposing a requirement for leave before he can initiate any further proceedings of that nature in the NSW court system.(Footnote omitted.)
Decision
Reasons for decision
On 10 August 2021, the primary judge set aside the originating application in proceeding ACD 44 of 2020. It is clear that, by making that order, her Honour summarily dismissed the proceeding: Quach v Marks (No 2) [2021] FCA 922 at [9] (the second judgment). On 23 August 2021, the applicant filed an application for leave to appeal from that judgment: proceeding ACD 57 of 2021. On 28 September 2021, a Registrar of the Court made an order that the two applications for leave to appeal be listed for hearing at the same time. On 10 May 2022, over the applicant’s objection, I made an order that the Attorney General be joined as a respondent in proceedings ACD 25 of 2021 and ACD 57 of 2021. I also made other procedural orders, including that the parties file written outline of submissions in relation to the two applications for leave to appeal: Quach v Marks [2022] FCA 511. BACKGROUND There have been a number of cases brought by the applicant in respect of the NCAT decisions. The relevant history is summarised in Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267 at [2] – [8]:2 A brief outline of the background to the show cause matters is as follows. Mr Quach was a medical practitioner. The subject matter of the proceedings before NCAT involved two notices of complaint lodged against Mr Quach by the Health Care Complaints Commission (the Commission), one in June 2013; the other in January 2014. The Notices of Complaint contained ten separate complaints against Mr Quach, including complaints of professional misconduct, impairment and a lack of sufficient mental capacity, knowledge and skill to practise as a health practitioner. There was a degree of procedural complexity because the dates of the two Notices of Complaint straddled the abolition of the Medical Tribunal of New South Wales and the establishment of NCAT on 1 January 2014. The first Notice of Complaint was lodged with the Medical Tribunal and the second with NCAT.3 The proceedings before NCAT were dealt with in two stages: the first may be referred to as the disciplinary or Stage One proceeding; the second may be referred to as the protective orders or Stage Two proceeding.4 Mr Quach and the Commission were both legally represented during the disciplinary proceeding. After the final day of argument on 19 December 2014, the Principal Member delivered an ex tempore judgment in which he specified the conditions to be imposed on Mr Quach's licence on an interlocutory basis pending argument and decision in the Stage Two proceeding. On 9 January 2015, the matter was relisted (it appears at the request of the Commission) before the Principal Member, sitting alone. Mr Quach represented himself on that day. Following that hearing, the Principal Member amended the form of the interlocutory conditions.5 On 5 February 2015, NCAT delivered its reasons in the disciplinary proceeding: Health Care Complaints Commission v Quach [2015] NSWCATOD 2 (Stage One decision). NCAT made findings that each of the ten complaints had been made out. NCAT also made two findings of professional misconduct within the meaning of Health Practitioner Regulation National Law 2009 (NSW) (National Law), s 139E and findings of “impairment” and lack of “competence” to practise by reason of that impairment under the National Law, ss 5 and 139: Stage One decision at [334], [335], [366], [367], [419], [420] and [422]. A Notice of Decision was issued by NCAT on 11 February 2015.6 On 21 April 2015, NCAT delivered its reasons in the protective orders proceeding: Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32) (Stage Two decision). NCAT made orders cancelling Mr Quach’s registration as a medical practitioner, and precluding any application for review for a period of seven years, and prohibiting him from providing any health service on a public, private or volunteer basis.7 Prior to NCAT's Stage Two decision, Mr Quach commenced two proceedings in February 2015 by way of judicial review of NCAT’s Stage One decision, including the interlocutory orders made on 19 December 2014 and 9 January 2015. Those proceedings were unsuccessful: Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63 (Quach v NCAT (No 1)). In May 2015, Mr Quach commenced a further proceeding by way of judicial review of NCAT’s Stage One decision and Stage Two decision. That proceeding was also unsuccessful: Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10 (Quach (No 1)).8 Not being satisfied with the decisions of this Court rejecting his judicial review applications, Mr Quach sought to re-agitate his contentions by making numerous further applications by way of notice of motion in this Court. Each of those further applications was unsuccessful. The nature of those applications are summarised below.
Ratio Decidendi
Legal Principle Established
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