Quach v New South Wales Civil and Administrative Tribunal

[2022] NSWCA 176

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Quach v New South Wales Civil and Administrative Tribunal [2022] NSWCA 176

Hearing dates:

8 September 2022 (on the papers)

Decision date:

09 September 2022

Before:

Gleeson JA

Decision:

Application for recusal declined

Catchwords:

JUDGMENTS AND ORDERS – Court of Appeal – bias – apprehended bias on the ground of prejudgment – where members of the Court sat on previous unsuccessful applications by the applicant

Cases Cited:

British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2

CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 78; [2019] HCA 50

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

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

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

Quach v New South Wales Civil and Administrative Tribunal [2020] NSWCA 295

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

Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39

Category:

Procedural rulings

Parties:

Michael Quach (Applicant)
NSW Civil and Administrative Tribunal (First Respondent)
NSW Health Care Complaints Commission (Second Respondent)

Representation:

Counsel:
Self-represented (Applicant)

Solicitors:
Self-represented (Applicant)

File Number(s):

2015/158685

Judgment

1. GLEESON JA: Application is made by Mr Michael Van Thanh Quach by notice of motion filed 5 April 2022 to set aside a vexatious proceedings order made by the Court on 20 October 2017. [1] This is the fifth such application by Mr Quach; his four previous applications were unsuccessful.

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

2. The notice of motion also seeks an order, relevantly, that I recuse myself for apprehended bias given my participation as a member of the Court which dismissed Mr Quach’s fourth application to set aside this order on 18 November 2020. [2]

   2. Quach v New South Wales Civil and Administrative Tribunal [2020] NSWCA 295 (Gleeson JA, Leeming and McCallum JJA agreeing.)

3. Questions of bias should be addressed first, as the High Court explained in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd. [3] That is because the necessary result, if bias is established, is a retrial. [4]

   3. Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 (Concrete).

   4. Concrete at [2]-[3] (Gummow ACJ), [117] (Kirby and Crennan JJ), [172] (Callinan J).

Apprehended bias

4. The test for apprehension of bias is objective. It does not require an assessment of the state of mind of the judge in question, as is necessary on an inquiry about actual bias. [5] The test for recusal is whether a fair-minded lay person might reasonably consider that the judicial officer might not carry out their judicial functions with an impartial and unprejudiced mind. [6]

   5. Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 (Michael Wilson) at [33].

   6. Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [6]; Michael Wilson at [31]; CNY 17 v Minister for Immigration and Border Protection (2019) 268 CLR 78; [2019] HCA 50 at [17]-[18] (Kiefel CJ and Gageler J), [56]-[57] (Nettle and Gordon JJ), [132] (Edelman J).

5. The application of the double “might” test requires two steps. First, identification of what it is said might lead the decisionmaker to decide a question other than on the merits of that question; and second, an articulation of the logical connection between the matter identified and the apprehended or feared deviation from the course of deciding the question other than on its merits. [7]

   7. Michael Wilson at [31], citing Ebner at [16].

6. In considering the recusal application, I am mindful that it is the duty of a judicial officer to determine matters which come before the judge and not to withdraw unless there are reasons which require the judge to do so. As Mason J said in Re JRL; Ex parte CJL [8] :

Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

8. (1986) 161 CLR 342 at 352; [1986] HCA 39.

7. In this case, the decision of the Court in November 2020 dismissing Mr Quach’s application did not involve findings adverse to Mr Quach’s credibility. To the extent that Mr Quach raises arguments on the present application similar to the legal arguments which were rejected by the Court when dismissing his previous application, my involvement in the Court’s November 2020 decision is not a reason for apprehending an inability to deal fairly, according to law, with the further application made by Mr Quach.

8. Applying the double “might” test, I am satisfied that a fair-minded lay person would not reach the conclusion that I might not bring an impartial and unprejudiced mind to the resolution of the questions for decision on the notice of motion. [9]

   9. Ebner at [8]; Michael Wilson at [32]-[33]; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [139] (Heydon, Kiefel and Bell JJ).

9. For these reasons, I decline the recusal application.

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Endnotes

Decision last updated: 09 September 2022