Quach v Marks (No 2)

Case [2021] FCA 922

FEDERAL COURT OF AUSTRALIA

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

File number: ACD 44 of 2020
Judgment of: ABRAHAM J
Date of judgment: 10 August 2021
Catchwords:

HIGH COURT AND FEDERAL COURT – application for recusal of a judge on basis of apprehended bias – where presiding judge previously decided matters adversely to applicant – no basis for recusal established  

PRACTICE AND PROCEDURE – application to set aside originating application for want of jurisdiction under r 13.01 of Federal Court Rules 2011 (Cth) – where claim is a “colourable” federal claim – application to set aside originating application granted

PRACTICE AND PROCEDURE– application for summary dismissal under r 26.01 of Federal Court Rules 2011 (Cth) – where no reasonable prospects of success – where proceedings instituted vexatiously – where no reasonable cause of action disclosed – application for summary dismissal granted
Legislation:

Civil and Administrative Tribunal Act 2013 (NSW) s 60

Crimes Act 1914 (Cth)

Evidence Act 1995 (Cth) s 91

Federal Court of Australia Act1976 (Cth) ss 19(1), 31A(2)

Federal Court Rules 2011 (Cth) rr 13.01, 26.01

Health Practitioner Regulation National Law 2009 (NSW)
Cases cited:

Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212

CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76

Doggett v Commonwealth Bank of Australia [2019] FCAFC 19

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Felton v Mulligan (1971) 124 CLR 367

Frugtniet v Secretary, Department of Social Services [2021] FCAFC 127

GetSwift Ltd v Webb [2021] FCAFC 26

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

Health Care Complaints Commission v Quach [2015] NSWCATOD 2

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288

Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427

Page v Sydney Seaplanes Pty Ltd[2020] FCA 537; (2020) 277 FCR 658

Qantas Airways Ltd v Lustig [2015] FCA 253; (2015) 228 FCR 148

Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313

Quach v Marks [2021] FCA 335

Quach v New South Wales Civil and Administrative Tribunal [2020] NSWCA 214

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

Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267

Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1

In Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
Division: General Division
Registry: Australian Capital Territory
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 42
Date of hearing: 3 August 2021
Counsel for the Applicant: The applicant appeared in person.
Counsel for the Respondent: The respondent filed a submitting notice, save as to costs.
Counsel for the Intervener: Mr D Birch

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Details
AGLC
Quach v Marks (No 2) [2021] FCA 922
Case
[2021] FCA 922
Decision Date

CaseChat Overview and Summary

The case of Quach v Marks (No 2) involved the applicant seeking the recusal of a judge on the basis of apprehended bias. The applicant argued that the presiding judge had previously decided matters adversely to him, leading to a potential bias in the current case. The legal issues revolved around whether there was a proper basis for recusal and whether the court had jurisdiction to hear the case.

The court found that there was no basis for the judge's recusal, as the previous decisions did not indicate any reasonable apprehension that the judge would not approach the issues impartially. The court emphasized that a judge's prior rulings against a party do not inherently suggest bias. Furthermore, the court ruled that the claim was a "colourable" federal claim, meaning it was made for the improper purpose of fabricating federal jurisdiction. The court held that the applicant's claim did not engage federal jurisdiction and was better suited for resolution in the New South Wales court system.

Consequently, the court set aside the applicant's originating application for want of jurisdiction and granted the application for summary dismissal. The applicant was ordered to pay the costs of the Intervener. This decision underscored the importance of adhering to proper legal channels and highlighted the limitations of the Federal Court's jurisdiction in matters primarily concerning state tribunals.

Orders

Orders of the court

1. The applicant’s originating application, dated 26 August 2020, is set aside.

2. The applicant is to pay the costs of the Intervener, to be agreed or assessed.

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

Background

Background to the litigation

Applying the relevant principles, there is no proper basis for me to disqualify myself from hearing and determining this case. That a judge has made a previous decision on issues in a matter does not “mean either that [the judge] will approach the [other] issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that [the judge’s] previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that [the judge] will approach the issues in this way”: In Re JRL at 352 per Mason J; Doggett v Commonwealth Bank of Australia [2019] FCAFC 19 per Kerr, Davies and Thawley JJ at [11]. In relation to my decision in Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313, in my view the applicant has been unable to identify any logical connection between the previous dismissal in other proceedings and the issues that need to be determined in the present case, such that a fair minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the question that I am now required to decide. That I had previously ruled against the applicant, would not, in the circumstances, lead a fair-minded lay observer to apprehend that. Factual Background There have been a number of cases brought by the applicant against the NCAT decisions. The relevant litigation history was summarised by the Court of Appeal of NSW 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. See also [45]-[104] which provides greater detail of the history of the proceedings.

Evidence

Evidence Before The Court

Since that decision there has been a number of further attempts by the applicant to litigate these proceedings in the Supreme Court of New South Wales (Supreme Court of NSW) and Court of Appeal of NSW, which are unnecessary to traverse here.Evidence In support of the application, the Attorney General read an affidavit of Kyle Hudson, an employed solicitor who had carriage of the matter, affirmed on 15 April 2021. The applicant opposed the affidavit being read, and contended that the decisions of NCAT attached thereto were not admissible to establish that Mr Marks was qualified to sit on NCAT, citing s 91 of the Evidence Act 1995 (Cth). However, as the Intervener submitted, the evidence was not relied on for that purpose, only to demonstrate what had occurred. I admitted the affidavit. The applicant relied on an affidavit dated 26 August 2020, which was read without objection.Consideration Before addressing the basis of the application it is appropriate to make some observations. First, to state the obvious, the claim relates to the appointment of a member to NCAT, a New South Wales Tribunal, established under the Civil and Administrative Tribunal Act 2013 (NSW). Second, a party may challenge an error by NCAT by an appeal to NCAT’s Appeal Panel and thence an appeal to the Supreme Court of NSW (or alternatively by an application for judicial review to the Supreme Court of NSW). As apparent from the recitation of the history above, the applicant has repeatedly challenged the NCAT decisions and each application has been rejected. Third, importantly, these challenges have included that Mr Marks was not validly appointed to NCAT. That challenge has been rejected: Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10 at [23]-[33]. Fourth, neither of the challenged NCAT decisions refers to the Health Insurance Act 1973 (Cth). There are no findings under that Act, but rather the findings of unsatisfactory professional conduct and professional misconduct (and the underlying findings) were made under the Health Practitioner Regulation National Law 2009 (NSW). Against that background I turn to the application. Dismissal for want of jurisdiction The Intervener contends that “Ground 1” of the applicant’s originating application is the only ground which even arguably invokes federal jurisdiction, but that the claim concerns the authority of NCAT, relevantly constituted by members including the Honourable Francis Marks, to make orders pursuant to the Civil and Administrative Tribunal Act which is a matter which does not engage federal jurisdiction. A party may challenge an error by NCAT by an appeal to NCAT’s Appeal Panel and thence an appeal to the Supreme Court of NSW (or alternatively by an application for judicial review to the Supreme Court of NSW). The Intervener referred to s 19(1) of the FCA Act, and to Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1 (Rana) at [15]-[22] as to the scope and operation of federal jurisdiction. Reference was also made to Qantas Airways Ltd v Lustig [2015] FCA 253; (2015) 228 FCR 148 (Lustig) at [88]. The Intervener submitted that the impugned NCAT decisions did not make findings under the Health Insurance Act. Nor does the claim rely on an asserted cause of action created by the Health Insurance Act. It was submitted that “[a]t the absolute highest, the Applicant’s claim merely involves the interpretation of a federal law, a matter which on its own does not attract federal jurisdiction: see Rana at [18], citing Felton v Mulligan (1971) 124 CLR 367 at 374, 408-409, 416”.

Decision

Reasons for decision

The applicant’s contention that his claims, including that Mr Marks acted dishonestly, are a criminal proceeding and not subject to summary dismissal, is misconceived. The applicant has brought civil proceedings, instituting them by an originating application and is seeking relief, including damages, as set out in his statement of claim. They do not fall within the definition of criminal proceedings for the purposes of the FCA Act: Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313 at [36]. I note that this Court does not have a general criminal jurisdiction, and although it does have such jurisdiction in respect to some matters, it is limited. In any event, contrary to the applicant’s submission, he does not have authority to bring criminal proceedings in relation to an indictable offence in the Federal Court: Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313 at [36]-[40]. Conclusion The application that the proceedings be dismissed for want of jurisdiction is granted. If I had not so concluded, the proceedings would have been summarily dismissed. The applicant is to pay the Intervener’s costs to be agreed or assessed.

Ratio Decidendi

Legal Principle Established

The applicant relied on an affidavit dated 26 August 2020, which was read without objection.Consideration Before addressing the basis of the application it is appropriate to make some observations. First, to state the obvious, the claim relates to the appointment of a member to NCAT, a New South Wales Tribunal, established under the Civil and Administrative Tribunal Act 2013 (NSW). Second, a party may challenge an error by NCAT by an appeal to NCAT’s Appeal Panel and thence an appeal to the Supreme Court of NSW (or alternatively by an application for judicial review to the Supreme Court of NSW). As apparent from the recitation of the history above, the applicant has repeatedly challenged the NCAT decisions and each application has been rejected. Third, importantly, these challenges have included that Mr Marks was not validly appointed to NCAT. That challenge has been rejected: Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10 at [23]-[33]. Fourth, neither of the challenged NCAT decisions refers to the Health Insurance Act 1973 (Cth). There are no findings under that Act, but rather the findings of unsatisfactory professional conduct and professional misconduct (and the underlying findings) were made under the Health Practitioner Regulation National Law 2009 (NSW). Against that background I turn to the application. Dismissal for want of jurisdiction The Intervener contends that “Ground 1” of the applicant’s originating application is the only ground which even arguably invokes federal jurisdiction, but that the claim concerns the authority of NCAT, relevantly constituted by members including the Honourable Francis Marks, to make orders pursuant to the Civil and Administrative Tribunal Act which is a matter which does not engage federal jurisdiction. A party may challenge an error by NCAT by an appeal to NCAT’s Appeal Panel and thence an appeal to the Supreme Court of NSW (or alternatively by an application for judicial review to the Supreme Court of NSW). The Intervener referred to s 19(1) of the FCA Act, and to Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1 (Rana) at [15]-[22] as to the scope and operation of federal jurisdiction. Reference was also made to Qantas Airways Ltd v Lustig [2015] FCA 253; (2015) 228 FCR 148 (Lustig) at [88]. The Intervener submitted that the impugned NCAT decisions did not make findings under the Health Insurance Act. Nor does the claim rely on an asserted cause of action created by the Health Insurance Act. It was submitted that “[a]t the absolute highest, the Applicant’s claim merely involves the interpretation of a federal law, a matter which on its own does not attract federal jurisdiction: see Rana at [18], citing Felton v Mulligan (1971) 124 CLR 367 at 374, 408-409, 416”. The Intervener submitted 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.