Quach v New South Wales Civil and Administrative Tribunal & Anor; Quach v Health Care Complaints Commission

[2015] HCASL 131

MICHAEL VAN THANH QUACH

v

NEW SOUTH WALES CIVIL AND ADMINISTRATIVE TRIBUNAL & ANOR

S71/2015

MICHAEL VAN THANH QUACH
v

HEALTH CARE COMPLAINTS COMMISSION (ABN 62909056262)

S72/2015

[2015] HCASL 131

1. The applicant, a medical practitioner, was the subject of complaints made by the Health Care Complaints Commission ("the HCCC") in two Notices of Complaint.  The Notices of Complaint were heard together by the New South Wales Civil and Administrative Tribunal ("NCAT").  NCAT determined to deal with the merits of the complaints ("stage one") and, in the event any complaints were sustained, to deal with consequential protective orders at a further hearing ("stage two"). 

2. On 19 December 2014, at the conclusion of the stage one hearing, NCAT made interlocutory orders imposing conditions on the applicant's right to practise pending its final determination.  The applicant, who was represented on that occasion, accepted that NCAT had the power to make interlocutory orders of the kind proposed.  On 9 January 2015, the Principal Member of NCAT amended the orders.

3. On 5 February 2015, NCAT found each complaint to have been proved.  The proceedings were stood over to 10 April 2015 for the stage two hearing.

4. In the interim, the applicant commenced judicial review proceedings in the Supreme Court of New South Wales seeking to have the conditions on his registration removed and contending that NCAT had acted ultra vires.  In separate proceedings in the Supreme Court of New South Wales the applicant sought prohibition against the HCCC.  Both proceedings were removed into the Court of Appeal (Basten and Ward JJA and Sackville AJA) and heard together. 

5. The Court of Appeal rejected the applicant's complaint that he had been denied procedural fairness and rejected his challenges to NCAT's jurisdiction.  Although it was not the subject of specific complaint, the Court of Appeal considered that the amendment of the orders by the Principal Member was irregular.  The Court did not address this issue further, having identified powerful discretionary reasons for refusing to grant the relief claimed.  Those reasons included that the applicant had not sought leave to appeal from the orders, that any question of their validity would shortly be moot, and that the applicant would have a right of appeal to the Supreme Court on a question of law and by leave on any other ground against NCAT's final orders[1].  The Court of Appeal also held that the HCCC was a proper and necessary party to the proceedings.  Each proceeding was dismissed.

   [1]Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63 at [48]-[49], [51].

6. The applicant applies for special leave to appeal from the Court of Appeal's orders in each proceeding. The applicant does not have legal representation and his application falls to be determined under r 41.10 of the High Court Rules 2004 (Cth).

7. The material filed in support of the applications does not reveal whether the validity of the interlocutory orders is now moot.  In any event, no question raised by either application is suitable for the grant of special leave.  An appeal in either proceeding would have no prospect of success. 

8. The applications are dismissed.

9. Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal orders dismissing each application.

V.M. Bell
13 August 2015 S.J. Gageler