Quach v New South Wales Health Care Complaints Commission (No 3)

[2016] NSWCA 284

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Quach v New South Wales Health Care Complaints Commission (No 3) [2016] NSWCA 284

Hearing dates:

22 August 2016

Decision date:

19 October 2016

Before:

McColl JA at [1], Macfarlan JA at [97], Sackville AJA at [98]

Decision:

Dismiss the review application with costs.

Catchwords:

PRACTICE – review of decision of single judge of appeal – Supreme Court Act 1970 (NSW), s 46(4) – whether court properly constituted by single judge – whether denial of procedural fairness – whether judge erred in principle or decision plainly wrong

 

PRACTICE – inherent jurisdiction of court – abuse of process – where applicant sought to re-agitate issues finally determined in principal proceedings – where applicant made repeated applications for orders already rejected on previous applications – where applicant asserted entitlement to persist in making applications – where order in terms of Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771 – principle of finality – Court’s exercise of inherent powers to prevent abuse of process

  LAW REFORM – Civil Procedure Rules 1998 (UK), r 3.11 – Practice Direction 3C (Civil Restraint Orders) – recommendation Rules Committee consider similar rule and practice direction

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)
Civil Procedure Act 2005 (NSW)
Civil Procedure Rules 1998 (UK)
Health Care Complaints Commission Act 1993 (NSW)
Health Practitioner Regulation Amendment Act 2010 (NSW)
Health Practitioner Regulation National Law (NSW)
Medical Practice Act 1992 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Vexatious Proceedings Act 2008 (NSW)

Cases Cited:

Adamson v Ede [2009] NSWCA 379
Attorney-General v Barker [2000] 1 FLR 759; [2000] 2 FCR 1; [2000] EWHC 453
Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572; [2016] HCA 16
Ball v McInerney [2014] NSWCA 331
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27
Bhamjee v Forsdick (No 2) [2003] All ER (D) 429 (Jul); [2004] 1 WLR 88; [2003] EWCA Civ 1113
Collier v Lancer [2013] NSWCA 185
Commonwealth Trading Bank v Inglis (1974) 131 CLR 311(at 319); [1974] HCA 17
Donnelly v Australia & New Zealand Banking Group Ltd [2014] NSWCA 43
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43
Grepe v Loam (1887) 37 Ch D 168
Hamilton v Oades (1989) 166 CLR 486; [1989] HCA 21
Health Care Complaints Commission v Quach [2015] NSWCATOD 2
Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43
Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; [1988] HCA 32
Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63
Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10
Quach v New South Wales Health Care Complaints Commission (No 4) [2016] NSWCA 285
Ridgeway v R (1995) 184 CLR 19; [1995] HCA 66
Rinehart v Welker [2011] NSWCA 403
Rogers v R (1994) 181 CLR 251; [1994] HCA 42
Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771; [2011] NSWCA 324
Teoh v Hunters Hill Council (No 7) [2012] NSWCA 356
Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125
Velissaris v Dynami Pty Ltd [2013] VSCA 299; (2013) 306 ALR 256
Wentworth v Graham (2003) 57 NSWLR 741; [2003] NSWCA 229
Wentworth v Graham [2003] NSWCA 307

Texts Cited:

Bullen & Leake & Jacob’s Precedents of Pleadings (12th ed 1975, Sweet and Maxwell)
Ritchie’s Uniform Civil Procedure NSW, LexisNexis

Category:

Principal judgment

Parties:

Michael Van Thanh Quach (Applicant)
New South Wales Health Care Complaints Commission (First Respondent)
New South Wales Civil and Administrative Tribunal (Second Respondent)
Attorney General of New South Wales (Third Respondent)

Representation:

Counsel:
Self represented (Applicant)
K Richardson (First Respondent)
B K Lim (Third Respondent)

  Solicitors:
N/A (Applicant)
Health Care Complaints Commission (First Respondent)
Crown Solicitor (Third Respondent)

File Number(s):

2015/158685

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

Court of Appeal

Citation:

[2016] NSWCA 49

Date of Decision:

21 March 2016

Before:

Meagher JA

File Number(s):

2015/158685

Judgment

1. McCOLL JA: On 21 March 2016 Meagher JA dismissed three notices of motion filed by the applicant, Mr Quach (Quach (No 2)). [1] By notice of motion filed on 22 March 2016, Mr Quach seeks a review of Meagher JA’s decision pursuant to s 46(4) of the Supreme Court Act 1970 (NSW) (SCA) (review application).

   1. Quach v Health Care Complaints Commission [2016] NSWCA 49.

Factual background

2. Mr Quach was the subject of proceedings brought by the first respondent, the Health Care Complaints Commission (Commission), in the New South Wales Civil and Administrative Tribunal (NCAT) which led to the cancellation of Mr Quach’s registration as a medical practitioner. [2] The disciplinary decision resulted in findings of unsatisfactory professional conduct and professional misconduct being made against Mr Quach. The protective orders decision resulted in orders cancelling Mr Quach’s registration as a medical practitioner, preventing him from applying to review the cancellation of his registration for a period of seven years and prohibiting him from providing any health service on a public, private or volunteer basis.

   2. Health Care Complaints Commission v Quach [2015] NSWCATOD 2 (disciplinary decision); Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32 (protective orders decision) (NCAT decisions).

3. By an amended summons dated 12 May 2015, file number 2015/158685 (Court of Appeal proceedings), heard by the Court of Appeal in its supervisory jurisdiction pursuant to s 69 of the SCA, Mr Quach sought to identify jurisdictional error in the NCAT decisions. On 10 February 2016 the Court of Appeal dismissed the amended summons (Quach (No 1)). [3] This judgment is written on the basis that readers are familiar with Quach (No 1).

   3. Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10 per Leeming JA (McColl and Meagher JJA agreeing).

4. As Meagher JA said in Quach (No 2), the effect of Quach (No 1) is that “the real issues in the proceedings between these parties have been determined”. However, “[t]he problem which confronts the Court and the [Commission] is that Mr Quach does not seem prepared to accept that determination.” [4]

   4.    Quach (No 2) (at [28]).

5. At the time the amended summons was dismissed, Leeming JA made the following orders in respect of two motions filed by Mr Quach which were before the Court:

“(4)    Paragraph 3 of the notice of motion filed 21 October 2015 stood over to a date to be advised for directions before the Registrar.

…

(6)    Notice of motion filed 28 January 2016 stood over to a date to be advised for directions before the Registrar.” [5]

5.    Quach (No 1) (at [76]).

6. The motions stood over by Leeming JA, along with an additional motion filed by Mr Quach on 1 March 2016 and two motions filed by the Commission on 22 February and 4 March 2016 respectively, were heard by Meagher JA on 9 March 2016. In Quach (No 2), his Honour dismissed all of Mr Quach’s motions, made orders the Commission had sought in its motions and ordered Mr Quach to pay the Commission’s costs. Order 8 provided:

“8.   Direct the Registrar, should Mr Quach file any further notice of motion in these proceedings (other than an application seeking a review of this decision), to vacate the return date of that motion, notify the parties and refer the papers to a judge nominated by the President to determine, in chambers, whether the Court should fix a new return date and notify the parties of that date, or whether Mr Quach should be invited to show cause in writing why the Court should not in chambers summarily dismiss the application as vexatious and an abuse of process.” [6]

6.    Quach (No 2) (at [36]).

7. Mr Quach filed three motions subsequent to Meagher JA’s decision (further motions). Subject to Mr Quach’s application to review Meagher JA’s orders, those motions are to be dealt with by the Court in chambers in accordance with Order 8.

8. For the reasons that follow, I am of the view that the review application should be dismissed. Accordingly, the further motions are dealt with in a separate judgment delivered today. [7]

Motions before Meagher JA

7. Quach v New South Wales Health Care Complaints Commission (No 4) [2016] NSWCA 285.

Mr Quach’s 21 October 2015 motion

9. By paragraph 3 of the 21 October 2015 motion, Mr Quach applied for judicial review of, and to have declared void, a decision of the New South Wales Medical Board (Medical Board) given on 23 September 1999. As Meagher JA observed, “[t]hat Board was constituted by the Medical Practice Act 1992 (NSW), s 129. That Act was repealed by the Health Practitioner Regulation Amendment Act 2010 (NSW), Sch 3, with effect from 1 July 2010.” [8]

   8.    Quach (No 2) (at [7]).

10. His Honour held that the application for judicial review could not be brought by way of motion in the Court of Appeal proceedings which sought judicial review of the NCAT decisions. Rather, any such application had to be commenced by summons and accompanied by material which included the reasons (if any) for the challenged decision and written submissions of the applicant. [9] Further, the body or person responsible for the decision under review had to be joined as a defendant. [10] Neither the Medical Board nor any other entity had been joined to the application as the relevant decision-maker, or as representing that decision-maker. The Commission did not make the 1999 decision and would not be the, or a, proper responding party to Mr Quach’s proposed claim for relief. [11]

    9. Uniform Civil Procedure Rules 2005 (NSW) (UCPR) 6.4(1)(b1); 51.45(1),(3); 59.3(1).

    10. UCPR 59.3(4).

    11.    Quach (No 2) (at [8] – [9]).

11. His Honour also observed that there were “fundamental difficulties” standing in the way of Mr Quach succeeding in his proposed claim, assuming it otherwise had some merit. First, the decision sought to be reviewed had been made over 16 years ago. Secondly, the Board’s decision, which involved the imposition of conditions on Mr Quach’s registration as a medical practitioner, had long ago ceased to have any continuing effect. Finally, Mr Quach had not pursued his right to appeal to the Medical Tribunal against the Board’s decision pursuant to s 17 of the Medical Practice Act. [12]

    12.    Ibid (at [10]).

Mr Quach’s 28 January 2016 motion

12. The 28 January 2016 motion sought “to ‘invalidate’ decisions made by Ms Karen Mobbs, a senior legal officer of the Commission, in relation to the prosecution of the two notices of complaint before NCAT.” It also sought “judicial review of a decision made by a Professional Standards Committee on 31 October 2011, following an inquiry into a complaint made under the Health Practitioner Regulation National Law (NSW).” [13]

    13.    Ibid (at [11]).

13. Meagher JA held that the 28 January 2016 motion should also be dismissed for substantially the same reasons as had warranted dismissal of the 21 October 2015 motion: it sought judicial review otherwise than in accordance with the UCPR as the claims were not made in separate proceedings commenced by summons and none of the necessary parties were joined. [14]

    14.    Ibid (at [13]).

14. Once again, his Honour observed that there were other difficulties preventing the proposed claims from succeeding, as the subject matter of Ms Mobbs’ “decisions” was the conduct of the proceedings before NCAT and Mr Quach’s challenge to those proceedings by way of judicial review had been dismissed. Secondly, ss 158, 158A and 161 of the Health Practitioner Regulation National Law (NSW) provided that an appeal may be made to the Medical Tribunal within 28 days of a decision of a Professional Standards Committee. Mr Quach had not exercised that right of appeal. [15]

    15.    Ibid.

Mr Quach’s 1 March 2016 motion

15. The 1 March 2016 motion sought three claims to relief: first, “judicial review” of Quach (No 1), secondly, a stay of the NCAT decisions the subject of Quach (No 1) and, thirdly, an order for “the ‘removal of … all conditions of registration’.” [16]

    16.    Ibid (at [14]).

16. The stay the subject of the second claim for relief was sought on the basis that Mr Quach had complained to the Judicial Commission of New South Wales against Acting Judge Marks (the Principal Member of the Health Practitioner Division List of NCAT which dealt with the proceedings the Commission brought against Mr Quach), and that complaint was being investigated. [17]

    17.    Ibid.

17. His Honour determined that the 1 March 2016 motion should be dismissed, because:

“[15] … [t]his Court has no jurisdiction to grant ‘judicial review’ of its decision of 10 February 2016. Mr Quach does not seek to invoke the power of this Court to set aside, vary or correct the substantive order dismissing his amended summons: cf UCPR, rr 36.16, 36.17. Nor, it must be added, do the circumstances suggest that there is any basis whatsoever for the exercise of that power.

[16]   As to the second claim to relief, that Mr Quach has made a complaint against Judge Marks does not provide any basis for a stay of execution of the orders of NCAT. The fact that his complaint to the Commission is being investigated is not an indicator that it has any substance because the Commission is required to investigate every complaint made to it: Judicial Officers Act 1986 (NSW), s 18. More fundamentally, there are no orders of NCAT, the continued operation of which might be the subject of a stay order. On 21 April 2015, NCAT ordered that Mr Quach’s registration be cancelled. That order took effect immediately and Mr Quach’s name was removed from the Register of Medical Practitioners, with the consequence that the order has no continuing operation which might be stayed: Quach v Health Care Complaints Commission [2015] NSWCA 187 at [13] – [14].

[17]   As to the third claim, it is not clear what ‘conditions of registration’ would be the subject of this order. Mr Quach’s registration as a health practitioner has been cancelled and there are no conditions which currently apply to him. If he seeks relief with respect to some earlier decision which imposed conditions, that claim would have to be made in separate proceedings and against the relevant decision maker. The present proceedings have been dismissed as there is no basis for the grant of such relief with respect to the two decisions of NCAT.”

Mr Quach’s amended motion filed 30 November 2015 and “re-filed” 16 February 2016

18. In addition to the matters listed before Meagher JA for hearing on 9 March 2016, his Honour observed that an issue arose as to an amended motion Mr Quach had filed on 30 November 2015 (amended motion) and “re-filed” on 16 February 2016, which his Honour addressed “for completeness”. [18]

    18.    Quach (No 2) (at [5]).

19. The circumstances in which the amended motion was filed in November 2015 were described by Leeming JA in Quach (No 1). [19] As Meagher JA summarised, as originally filed the 30 November 2015 motion was intended to be an amended version of the 21 October 2015 motion. On 7 December 2015 the Registrar refused Mr Quach leave to amend the October motion and ordered that the amended motion not be accepted for filing. [20] The effect of that order was that the amended motion was never filed. [21]

    19.    (at [13] – [15]).

    20. UCPR 4.10(4).

    21.    Quach (No 2) (at [18]).

20. By a notice of motion filed on 8 December 2015, Mr Quach sought to challenge the Registrar’s decision and order. That challenge was rejected and the notice of motion dismissed in Quach (No 1). [22]

    22.    (at [12], [15]).

21. Notwithstanding that dismissal, Mr Quach sought to “re-file” the amended motion on 16 February 2016, after judgment in Quach (No 1) was delivered, by lodging a copy of it with the registry. That copy was stamped “received”. He sought to move on the amended motion before Meagher JA on the basis that it was “filed” on 16 February 2016 and had not been dealt with previously. [23] Meagher JA rejected that application for the following reasons:

“[21]   Mr Quach did not have leave to file that document and his attempt to do so on 16 February 2016 was plainly contrary to the intent and effect of the Registrar’s order which was expressly upheld by this Court.

[22] Lest there be any doubt as to the present status of that document, I order pursuant to UCPR, r 4.10(4) that the document stamped on 16 February 2016 and entitled ‘Amended Notice of Motion 30 November 2015’ not be accepted for filing.”

23.    Quach (No 2) (at [20]).

22. UCPR 4.10(4) gives the court a discretion to refuse to accept a document for filing whether or not an officer of the court has accepted the document for filing.

Commission’s 4 March 2016 motion

23. The Commission’s 4 March 2016 motion sought orders that Mr Quach’s 1 March 2016 motion and a notice to produce filed by Mr Quach on 22 February 2016 be set aside. The first order sought was no longer necessary having regard to Meagher JA’s decision to dismiss the 1 March 2016 motion. [24]

    24.    Ibid (at [23]).

24. The notice to produce sought the production of documents with respect to the subject matter of paragraph 3 of Mr Quach’s 21 October 2015 motion and paragraphs 2 and 3 of his 28 January 2016 motion. As each of those motions had been dismissed, there was no substantial application before the Court to which the notice to produce was directed. Accordingly, his Honour dismissed it. [25]

    25.    Ibid (at [24] – [25]).

Commission’s 22 February 2016 motion

25. The Commission’s 22 February 2016 motion sought an order pursuant to s 61(2)(c) of the Civil Procedure Act 2005 (NSW) (CPA) (which enables the court to make “such other directions with respect to the conduct of proceedings as it considers appropriate”) that Mr Quach not file any further documents in the Court of Appeal proceedings unless leave to do so had previously been given by either a Judge or Registrar of the Court. The Commission submitted in support of that motion that Mr Quach’s continued attempts to broaden the scope of the subject matter of his application for judicial review dealt with in Quach (No 1) constituted an abuse of process. [26]

    26.    Quach (No 2) (at [31]).

26. Meagher JA observed that one difficulty with the application of s 61(2)(c) was that “the real issues in the proceedings between these parties have been determined and Mr Quach’s amended summons dismissed.” [27]

    27.    Ibid (at [28]).

27. In the course of oral argument, his Honour gave the parties a copy of this Court’s decision in Teoh v Hunters Hill Council (No 4). [28] His Honour referred the parties to paragraphs [32] and [37] – [39] of the judgment. He explained that an order of the sort made in Teoh (No 4) was made in the exercise of the court’s inherent jurisdiction to prevent abuse of process and could be more appropriate where, as in this case, the principal proceedings had been determined. [29]

    28. (2011) 81 NSWLR 771; [2011] NSWCA 324 (Teoh (No 4)) per Handley AJA (Allsop P and Beazley JA agreeing).

    29.    Transcript of hearing, 9 March 2016, pp 4 – 5.

28. The Commission then sought an order of the kind made in Teoh (No 4) (Teoh Order), both to protect the Court and its processes from abuse, and also to avoid unnecessary expenditure of financial and human resources on its part. [30]

    30.    Quach (No 2) (at [31]).

29. In the course of the hearing, Meagher JA also explained to Mr Quach that if he wished to have time to consider Teoh (No 4), he would be given that opportunity. [31] His Honour, in due course, asked Mr Quach if he was in a position to proceed. He reminded him that the Commission had applied for a Teoh Order. Mr Quach did not seek any further time to consider Teoh (No 4), but made submissions as to why a Teoh Order should not be made. [32]

    31.    Transcript of hearing, 9 March 2016, p 23.

    32.    Transcript of hearing, 9 March 2016, pp 26 – 27.

25. Meagher JA dealt with the application for the Teoh Order as follows:

“[32]   The history of the applications made by Mr Quach in relation to the judicial review of the two NCAT decisions is sufficiently recorded in the decisions of this Court in Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63 at [16] – [26] and in [2016] NSWCA 10 at [3] – [18].

[33] Since that second judgment was delivered, Mr Quach has sought to re-file the amended notice of motion of 30 November 2015 (see [18] above), filed the notice of motion of 1 March 2016 (see [14] above) and continued to press his notice of motion of 28 January 2016 (see [11] above). That has occurred notwithstanding the many indications he has received that further claims for substantive relief by way of judicial review could not be brought by notice of motion in proceedings 2015/158685 (see for example, [2016] NSWCA 10 at [16] – [18]).

[34]   I am satisfied that it is likely Mr Quach will continue to make such applications. In his oral argument, Mr Quach asserted that he was entitled in these proceedings to continue to raise and press ‘in the interests of justice’ the arguments which he has sought to make concerning challenges to conduct or decisions which preceded the decisions of NCAT on the basis that they contributed in some way to the outcome of those proceedings before NCAT. Furthermore, in his written submission to this Court, Mr Quach maintained that he ‘will not terminate this proceeding’.

[35]   That being the position, this Court should make an order in similar terms to that made in Teoh to prevent the potential further abuse of its process and the incurring of unnecessary expense by, and the wasting of the resources of, the Commission.”

31. Meagher JA made the following orders:

“1.    Paragraph 3 of Mr Quach’s notice of motion filed 21 October 2015 dismissed.

2.    Mr Quach’s notice of motion filed 28 January 2016 dismissed.

3.    Mr Quach’s notice of motion filed 1 March 2016 dismissed.

4.    Order that the copy of Mr Quach’s amended notice of motion stamped ‘received’ by the Court on 16 February 2016 not be accepted for filing.

5.    Order Mr Quach pay the costs of the applications in orders 1, 2, 3 and 4 above.

6.    Set aside Mr Quach’s notice to produce filed 22 February 2016.

7.    Otherwise dismiss the Commission’s notice of motion filed 4 March 2016.

8.   Direct the Registrar, should Mr Quach file any further notice of motion in these proceedings (other than an application seeking a review of this decision), to vacate the return date of that motion, notify the parties and refer the papers to a judge nominated by the President to determine, in chambers, whether the Court should fix a new return date and notify the parties of that date, or whether Mr Quach should be invited to show cause in writing why the Court should not in chambers summarily dismiss the application as vexatious and an abuse of process.

9.    Order Mr Quach pay the Commission’s costs of its motions filed 22 February 2016 and 4 March 2016.” [33]

33.    Quach (No 2) (at [36]).

Issues on review

32. On 22 March 2016, the day after Meagher JA delivered judgment in Quach (No 2), Mr Quach filed the motion seeking a review of his Honour’s decision. [34]

    34.    The 22 March 2016 motion bears the date 21 March 2016, but was filed on 22 March 2016.

33. The motion identified the grounds for review as follows: [35]

    35.    The first four “grounds” were identified as A, B, C and D. The Commission referred to these grounds as 1A – 1D, a description it is convenient to adopt.

1. That Meagher JA was not in court attire when “sitting on the hearing”. (Ground 1A)

2. That “pursuant to the High Court ruling of Gedeon v New South Wales Crime Commission”[36] the “Commission is invalid because a reasonable person in the position of Commissioner would be aware that:

   36. Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 (Gedeon).

1. in the absence of any patient complaints at the discretion of the patients, within the time limit for assessment, it has no statutory power to prosecute and maintain the decisions of [NCAT] of HCCC v Quach 2015; and

2. Ms Karen Mobbs, an officer of the Commission, was prohibited from being appointed Acting Commissioner (delegated the power of delegation) from the 26 June 2015 pursuant to Health Care Complaints Commission Act 1993 (NSW) s 84 [sic, as in original].” (Ground 1B)

3. That Mr Quach was denied procedural fairness, because:

1. the “choice of judge” was made by the Commission and aided by Registrar Riznyczok;

2. the Commission’s 4 March 2016 motion was served on Mr Quach only one and a half days before the hearing, and not “the statutory three clears days” [sic, as in original];

3. Meagher JA “actively assisted” the Commission by “using” Teoh (No 4) at the hearing;

4. orders 4, 6, 7 and 9 were “erroneous or illogical”; and

5. order 4 was erroneous, because the 30 November motion stamped received 30 November 2015 “[had] been filed but not yet heard”. (Ground 1C)

4. That in respect of orders 4 and 6 of the decision in Quach (No 1), “while Justice Meagher has changed his position, it remains the decision of the majority of the full bench (2:1) not to terminate the proceeding 2015/158685 and not to dismiss” paragraph 3 of the 21 October 2015 motion and the 28 January 2016 motion. (Ground 1D)

5. “Order the [Commission] to show cause and validity of the statutory power to:

A.   To prosecute first set of complaints and second set of complaints.

B.   To seek costs, notwithstanding the New South Wales Government policy in public prosecutions is not to seek cost against unsuccessful defendants [sic, as in original].” (Ground 2)

6. That the Commission has no statutory power and that pursuant to Gedeon the Full Bench should “void” the NCAT decisions; the decision of the Medical Board dated 23 September 1999; a report of a Dr Anthony Samuels dated 4 February 1999; and Ms Mobbs’ decisions to prosecute Mr Quach. (Ground 3)

34. Mr Quach filed an affidavit in support of the 22 March 2016 motion to which he annexed a copy of the High Court’s media release in relation to Gedeon.

Consideration

35. The nature of a review pursuant to s 46(4) was described in Rinehart v Welker [37] per Bathurst CJ and McColl JA as follows:

“[48] We are conscious of the heavy burden a party seeking a s 46(4) review has to discharge to have a Judge of Appeal’s order set aside. Such an application is not an appeal: s 19(2), Supreme Court Act; Uniform Civil Procedure Rules 2005 51.2. In order to succeed, the plaintiff beneficiaries must demonstrate that the judge erred in principle or that the judge’s decision was plainly wrong: Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; (2004) 60 NSWLR 143 (at [4], [6]); Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd [2007] NSWCA 274 (at [14]) (per Giles JA, Ipp and Basten JJA agreeing); Lo v Iverach [2009] NSWCA 92 (at [29]) (Allsop P, Giles and Macfarlan JJA). Although these tests bear similarities to those applied in reviewing a discretionary decision (House v R [1936] HCA 40; 55 CLR 499), a decision to make a suppression order is not a discretionary one: Hogan v Australian Crime Commission (at [33]).”

37. [2011] NSWCA 403; Rinehart was applied in Collier v Lancer [2013] NSWCA 185 (at [19] – [20]).

36. That heavy burden referred to in Rinehart can be seen from Donnelly v Australia & New Zealand Banking Group Ltd [38] where the Court explained:

“At least ordinarily, a review will not succeed unless ‘the decision turns on an error of law, a material error of fact, a failure to take into account some material consideration or the taking into account of an irrelevant consideration, or unless the decision is so unreasonable as to suggest that one of these types of error has been committed even though it does not appear on the face of the reasoning’: Patrick v Howorth [2002] NSWCA 285 at [10]; Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; 60 NSWLR 143 at [6].”

38. [2014] NSWCA 43 (at [13] – [14]) per Emmett, Gleeson and Leeming JJA.

37. In large part, the issues Mr Quach seeks to raise on the review application do not relate to the issues considered in Quach (No 2). Instead, as will become apparent, and as the Commission submits, they seek to ventilate issues which were determined in Quach (No 1). In that context, the Commission accepts that Grounds 1A, 1C(i) – (v) and 1D may be the subject of the review application, but contends that Grounds 1B, 2 and 3 are not within its purview.

38. The tenor of Mr Quach’s submissions can be seen from the first two matters he addressed in his written submissions.

39. The first is headed “Court of Appeal Ruling Quach v HCCC [2016] NSWCA 10.” It purports to be a challenge to the Court of Appeal’s disposition of his complaint about the Honourable Acting Judge Marks’ participation in the NCAT hearings.

40. The question of Judge Marks’ participation in the NCAT hearings was not agitated before Meagher JA, nor could it have been. That issue had been finally determined in Quach (No 1), [39] subject to any challenge Mr Quach may make to that decision in the High Court, as was pointed out to him in the course of the hearing on 22 August 2016.

    39.    (at [20] – [33]).

41. Indeed, it is not apparent this submission is directed to any ground of review. It need not be further considered.

42. Mr Quach next complained that the Court before which his notices of motion were listed was not properly constituted by only one judge. He submitted that “there was an error of law at the outset for a single Judge to review a Judgement and Orders of a full bench, even if the single Judge was partied to the full bench decision [sic, as in original]”. Mr Quach submitted, correctly, that “[a] single Judge does not have the power to review any Orders of the full bench.”

43. The short answer to this submission (even though, once again, it does not relate to a ground for review) is that Meagher JA did not sit to review the decision in Quach (No 1) nor, for the reasons I have just expressed, could he have done so. Rather, Meagher JA was empowered to hear the motions referred to him, sitting as a single judge, pursuant to s 46(2)(b) of the SCA. To the extent Mr Quach appeared to be under the impression that those motions had been stood over to be heard by a full bench, Meagher JA explained to Mr Quach at the hearing that that was not the case. [40]

    40.    Quach (No 2) (at [6]).

44. I turn to the matters which are referred to in the review application.

45. In respect of Ground 1A, as the Commission submits, it is customary for judges not to robe while hearing notices of motion. Whether Meagher JA was “in court attire” at the hearing on 9 March 2016 does not involve any matter which would vitiate his exercise of judicial power. Ground 1A should be rejected.

46. Ground 1B as elaborated in Mr Quach’s written submissions raised the issue that his “prosecution” by the Commission was “without any valid statutory authority.” This was not an issue raised before his Honour, nor, once again, could it have been having regard to the finality of the Court of Appeal proceedings. Accordingly, it is not a matter within the scope of a review of Meagher JA’s decision and need not be considered further.

47. I turn to the issues of procedural fairness raised in Ground 1C. It is uncontroversial that a judge is required to conduct judicial proceedings in accordance with natural justice (sometimes called procedural fairness). [41] The content of the requirement of fairness will depend upon the circumstances and may be affected by what is said and done during the proceedings. The focus is upon the consequence of any departure from proper procedure because what is ultimately in issue is whether unfairness has resulted from the process, not whether an expectation has been disappointed. The concern of the law is to avoid practical, and not merely theoretical, injustice. [42]

    41. Adamson v Ede [2009] NSWCA 379 (at [53] – [63]) per Campbell JA (Giles and Hodgson JJA agreeing).

    42. Ball v McInerney [2014] NSWCA 331 (at [57]) per Gleeson JA (Beazley P and Emmett JA agreeing); referring to Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 (at [34], [37]) per Gleeson CJ.

48. The first matter of procedural fairness of which Mr Quach complains in Ground 1C(i) concerns his contention that Registrar Riznyczok, the Court of Appeal Registrar, “cater[ed] for the request by the [Commission] to constitute the hearing with one of their three Judges of choice”.

49. The Commission accepts that it submitted before Registrar Riznyczok at a directions hearing in early 2016 that it would be preferable that the notices of motion stood over by the Court of Appeal in Quach (No 1) should be heard by one of the judges who heard Quach (No 1).

50. Mr Quach has not demonstrated any departure from proper procedure in relation to the listing of his motions before Meagher JA. It was entirely practical that they be listed before a judge who had some familiarity with the Court of Appeal proceedings. Mr Quach has not demonstrated that any unfairness flowed from that decision. Ground 1C(i) should be rejected.

51. Insofar as Mr Quach complained in Ground 1C(ii) about late service of the Commission’s 4 March 2016 motion, that motion was ultimately otiose because, as I have explained, it dealt with aspects of Mr Quach’s motions which Meagher JA disposed of when he dealt with those motions. No issue of want of procedural fairness arises. Ground 1C(ii) should be rejected.

52. I deal with Ground 1C(iii) later in these reasons under the heading “Teoh Order – procedural fairness”.

53. Grounds 1C(iv) and (v) which complain about Meagher JA’s orders 4, 6, 7 and 9 can be dealt with together. Complaints of error or lack of logic are not usually addressed in the context of complaints about procedural fairness, and I have not confined my consideration of them to such a complaint. However, I observe that Mr Quach did not make any written submissions in relation to these orders to amplify the bald assertions contained in the grounds themselves.

54. Order 4 relates to Meagher JA’s disposition of the amended motion. Mr Quach has not demonstrated that his Honour’s decision in that respect was erroneous. As Meagher JA held, it was the natural consequence of the decision in Quach (No 1) rejecting Mr Quach’s challenge to the Registrar’s decision in December 2015 refusing Mr Quach leave to amend the 21 October 2015 motion. [43]

    43.    Quach (No 2) (at [21]); see also Quach (No 1) (at [12], [15]).

55. Order 6 set aside Mr Quach’s notice to produce of 22 February 2016. That notice to produce was otiose once Meagher JA dismissed Mr Quach’s 21 October 2015 and 28 January 2016 motions for the reasons his Honour explained. Mr Quach has not demonstrated any error of principle or otherwise in relation to the making of that order.

56. Mr Quach made oral submissions about order 7. They appear to be based on his misconception that the Commission’s 4 March motion was that which sought the CPA, s 61(2)(c) order, so that it was “illogical” to “otherwise dismiss” it, but make the order sought. The claim for s 61(2)(c) relief, however, was a matter addressed by the Commission’s 22 February motion, but, in any event, ultimately supplanted by its application for a Teoh Order.

57. I would add that it does appear, with respect, that order 7 was made for more abundant caution. As the Commission submitted, once his Honour had made orders 3 and 6, he had dealt with both aspects of the relief the Commission sought in the 4 March motion, and there was no other aspect of the motion with which to deal. Making an order for more abundant caution does not demonstrate any error of a material nature, or want of procedural fairness.

58. Insofar as Mr Quach complained about order 9, his complaint appears to focus on the proposition that there was no power in the Health Care Complaints Commission Act 1993 (NSW) (HCCC Act) constituting the Commission to award costs in its favour. The HCCC Act deals, among other matters, with the making, resolution, investigation and prosecution of health care complaints concerning the professional conduct of a health practitioner. The short answer to this proposition, as was explained to Mr Quach in the course of the hearing in this Court, was that the source of power to award costs in relation to proceedings in the Court is s 98 of the CPA. Meagher JA did not err in awarding costs in the Commission’s favour or deny Mr Quach any procedural fairness.

59. Mr Quach has not demonstrated any practical injustice in relation to any of the matters he identifies as going to procedural fairness. Ground 1C should be rejected.

60. Insofar as Ground 1D is concerned, in orders 4 and 6 of the decision in Quach (No 1), to which that ground refers, [44] the Court referred the 21 October 2015 and 28 January 2016 motions for hearing on a date to be set by the Registrar. As I have explained, SCA, s 46(2)(b) empowered Meagher JA to hear those motions, sitting as a single judge. Mr Quach has not demonstrated that his Honour’s decisions to dispose of those motions is affected by any error of the nature of those identified in either Rinehart or Donnelly.

    44.    Set out above (at [5]).

61. As the Commission submits, Grounds 2 and 3 do not fall within the right of review pursuant to s 46(4). Mr Quach is seeking to reagitate issues raised in his amended summons, which was dismissed in Quach (No 1), not issues which were, or properly could have been, before Meagher JA. Grounds 2 and 3 should be rejected.

Teoh Order – jurisdiction

62. Mr Quach’s only effective complaint about Order 8 was that he was denied procedural fairness in its making. The effect of Order 8 is to impose conditions upon Mr Quach’s exercise of his right of access to the courts, albeit in this instance in respect of a concluded case. [45] Because Mr Quach is an unrepresented litigant, it seems appropriate, in my view, to review the substantive basis for making that order.

    45. Cf Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 (at 319); [1974] HCA 17 (Inglis) per Barwick CJ and McTiernan J (Walsh J, who sat on the appeal, died before judgment was delivered).

63. It is a central and pervading tenet of the judicial system, often referred to as the principle of finality, that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. [46] Further, it is the court’s duty to conserve its resources and ensure as far as possible that they are available for other litigants. The latter duty, in particular, finds reflection in the making of a Teoh Order. However the principle of finality is also significant in circumstances such as arise in this case, where Mr Quach has persisted in filing motions after the decision in Quach (No 1).

    46. D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 (D'Orta-Ekenaike) (at [34]) per Gleeson CJ, Gummow, Hayne and Heydon JJ; see also Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572; [2016] HCA 16 (at [30]) per French CJ, Kiefel, Bell, Gageler and Keane JJ.

64. Multiple or successive proceedings which cause or are likely to cause improper vexation or oppression are a well-recognised category of conduct constituting abuse of process attracting the intervention of the courts. [47] There are two aspects to this category of abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute. [48] Accordingly, a court is entitled to protect itself and its proceedings by making a Teoh Order in exercise of its inherent powers to prevent abuse of process in respect of a litigant who wishes to make multiple applications in pending or concluded proceedings. [49]

    47. Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43 (at [27]) per French CJ, Gummow, Hayne and Crennan JJ.

    48. Rogers v R (1994) 181 CLR 251 (at 256); [1994] HCA 42 (Rogers) per Mason CJ, referred to with approval in D'Orta-Ekenaike (at [74]).

    49.    Teoh (No 4) (at [32], [34] – [38]).

62. The majority of cases of abuse of procedure arise from the institution of proceedings, but any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court’s process. [50] The power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious. [51]

    50. Rogers (at 286) per McHugh J, referred to with approval in Batistatos v Roads and Traffic Authority of New South Wales; (2006) 226 CLR 256; [2006] HCA 27 (Batistatos) (at [15]) per Gleeson CJ, Gummow, Hayne and Crennan JJ.

    51.    Batistatos (at [15]).

63. There is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Courts have resisted, and warned against, laying down hard and fast definitions in that regard. [52] However, it at least extends to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging”,[53] or “productive of serious and unjustified trouble and harassment”. [54]

    52. Ridgeway v R (1995) 184 CLR 19 (at 74 – 75); [1995] HCA 66 (Ridgeway) per Gaudron J; referred to with approval in Batistatos (at [14]).

    53. Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 (at 247); [1988] HCA 32 (Oceanic Sun Line), referred to by Gaudron J in Ridgeway (at 75).

    54. Oceanic Sun Line per Deane J, quoted in Hamilton v Oades (1989) 166 CLR 486 (at 502); [1989] HCA 21, referred to by Gaudron J in Ridgeway (at 75).

64. In Bhamjee v Forsdick (No 2), [55] the Master of the Rolls, Lord Phillips (delivering the judgment of the Court of Appeal) said “courts have traditionally described the bringing of hopeless actions and applications as ‘vexatious’”. Ritchie’s Uniform Civil Procedure NSW[56] quotes the statement in Bullen & Leake & Jacob’s Precedents of Pleadings that “[a] matter is vexatious when it lacks bona fides and is hopeless and tends to cause the opponent unnecessary anxiety, trouble and expense”. [57]

    55. [2003] All ER (D) 429 (Jul); [2004] 1 WLR 88; [2003] EWCA Civ 1113 (Bhamjee) (at [7]).

    56. LexisNexis, online note to UCPR 4.15 (at [4.15.15]), accessed 19 October 2016.

    57.    (12th ed 1975, Sweet and Maxwell) at 145.

65. In Bhamjee, the court also quoted Lord Bingham CJ’s statement in Attorney-General v Barker [58] that “vexatious” is a familiar term in legal parlance. Lord Bingham added:

“The hallmark of a vexatious proceeding is … that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process.”(Emphasis added)

58. [2000] 1 FLR 759; [2000] 2 FCR 1; [2000] EWHC 453 (Admin) (at [19]) (Klevan J agreeing).

69. In Teoh (No 4), the order the court made was directed to any “further motion seeking, in substance, leave to appeal from the judgment of Sheahan J of 31 July 2009 [2009] NSWLEC 121”. [59] Ms Teoh persisted in filing motions. In Teoh v Hunters Hill Council (No 7),[60] the Court widened the ambit of the order to extend to “any further application against Hunters Hill Council in respect of the matters litigated in the Land and Environment Court or the Court of Appeal”. [61]

    59.    (at [42]).

    60. [2012] NSWCA 356. Nothing deterred Ms Teoh until, it appears, the Court made vexatious proceedings orders against her pursuant to the Vexatious Proceedings Act 2008 (NSW): Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125.

    61.    (at [7]).

70. In Teoh (No 4), [62] Handley AJA found one source of authority to make the Teoh Order in the statement in Inglis that “… there is an inherent power in the court to control the bringing of applications in the course of an action of which the court is seized for the purpose of preventing a party abusing the process of the court.” [63] In Inglis, the Court also observed that “the making of unwarranted and vexatious applications in an action which is pending in the court is … a matter over which there is an inherent power in the court to exercise control.” [64] Their Honours added that applications made after judgment had been given, either to set it aside or for orders inconsistent with it, were regarded as “in the action” even though made after judgment. [65]

    62.    (at [36]).

    63.    (at 320) per Barwick CJ and McTiernan J.

    64.    (at 319).

    65. (at 319), referring to Grepe v Loam (1887) 37 Ch D 168 and identifying that, among other cases, as an example of the exercise of the inherent jurisdiction of the court to prevent abuse of its process.

71. Teoh (No 4) was not the first occasion on which this Court has considered its powers to make such an order.

72. Inglis was also applied in two cases, both entitled Wentworth v Graham, [66] decided by Ipp JA and Brownie AJA in 2003. In Wentworth (No 1), [67] the Court referred to Bhamjee, where Lord Phillips said: [68]

“[T]he courts are facing very serious contemporary problems created by the activities of litigants like Mr Bhamjee who are bombarding them with applications which have no merit at all. ... It is also [the case] that the court is having to divert the skilled attention that ought to be paid to cases of real merit which warrant early hearings to cases which have no merit at all.”

66. (2003) 57 NSWLR 741; [2003] NSWCA 229 (Wentworth (No 1)) (at [2]) and Wentworth v Graham [2003] NSWCA 307 (Wentworth (No 2)) (at [27]).

67.    (at [3]).

68.    (at [3]).

73. Ipp JA and Brownie AJA added: [69]

“The courts in this State are facing the same kind of problems to which the English Court of Appeal referred. There is a need, in this State, for courts to take appropriate steps to prevent the persistent making of hopeless interlocutory applications that unnecessarily take up the time of the court to the prejudice of the community in general and of other litigants in particular.”

69.    (at [4]).

74. Their Honours recounted the satellite litigation initiated by Miss Wentworth stemming from her application for leave to appeal against a judgment of Ireland J, all of which had been dismissed as being devoid of merit, as well as multiple other applications. [70] In that satellite litigation, Miss Wentworth had “repeatedly refused to accept rulings that have displeased her, has attempted to reargue them immediately and then again later on, and she has repeatedly refused to limit her oral arguments to the time periods allotted by the Court.” [71] The Court concluded that Miss Wentworth would continue to make applications, without merit, for forms of relief. Accordingly, after giving Miss Wentworth the opportunity to make submissions as to why it should not do so, [72] the Court on 20 October 2003 made an order to the effect that:

“Save for the purposes of prosecuting the leave to appeal that has been or may be granted to her, Miss Wentworth is restrained from bringing any interlocutory application in these proceedings without first having obtained the leave of either Ipp JA or Brownie AJA.” [73]

70.    (Wentworth (No 1) (at [5] – [16]).

71.    Ibid (at [6]).

72.    See the Editorial Note on page 746 of the NSWLR report of Wentworth (No 1).

73.    Wentworth (No 1) (at [32]).

75. Leave was to be sought by written application and there was to be no oral hearing in regard to such applications for leave. [74]

    74.    Ibid.

76. In Wentworth (No 2), [75] their Honours quoted the following passage from Bhamjee: [76]

““A court’s overriding objective is to deal with cases justly. This means, among other things, dealing with cases expeditiously and allotting to them an appropriate share of its resources (while taking into account the need to allot resources to other cases). This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications. They thereby divert the court’s resources from dealing with meritorious disputes, delay the handling of those disputes, and waste skilled and scarce resources on matters totally devoid of any merit.”

75.    (at [6]).

76.    (at [15]).

77. In Wentworth (No 2), the Court expanded the terms of the order made in Wentworth (No 1) such that, even if Miss Wentworth was given leave to bring any interlocutory application in the proceedings, no oral hearing would take place in regard to any application made pursuant to such leave but, rather, all further hearings would be by way of written submissions alone. [77]

    77.    Wentworth (No 2) (at [43]).

78. Other courts in Australia have made orders similar to those made in the Wentworth and Teoh cases, primarily sourcing their power to do so from Inglis. [78]

    78. See the discussion in Velissaris v Dynami Pty Ltd [2013] VSCA 299; (2013) 306 ALR 256 (at [91] – [138]).

79. The decision in Quach (No 1) was final. Further, once 14 days had elapsed from the entry of the orders in that case pursuant to UCPR 36.11, those orders could only be set aside or varied by the Court of Appeal on limited grounds. [79] As Meagher JA observed in Quach (No 2),[80] Mr Quach did not, and I would add does not, seek to invoke the power of this Court to set aside, vary or correct the substantive order in Quach (No 1) dismissing his amended summons pursuant to either UCPR 36.16 or 36.17. Nor do the circumstances suggest that there is any basis for the exercise of those powers.

    79.    Cf Teoh (No 4) (at [25]).

    80.    (at [15]).

Mr Quach’s previous applications

80. In dealing with the Teoh application, Meagher JA referred [81] to the history of previous applications made by Mr Quach as set out in Quach v New South Wales Civil and Administrative Tribunal [82] and in Quach (No 1). [83] The applications referred to in Quach NCAT can be summarised as follows:

    81.    Quach (No 2) (at [32]).

    82. [2015] NSWCA 63 (Quach NCAT) (at [16] – [26]).

    83.    (at [3] – [18]).

1. In the passages in Quach NCAT to which Meagher JA referred, Sackville AJA (with whom Basten and Ward JJA agreed) identified first, a summons (First Summons) in which Mr Quach sought an order “[n]ullity and removal of matter” [sic, as in original] in relation to the matters then before NCAT on the grounds that NCAT and the Commission were “acting ultra vires” pursuant to a provision of the Health Practitioner Regulation National Law (NSW). The second prayer for relief in that summons was for an order of “[r]emoval of conditions on my registration number …”. It is unnecessary to deal with the Court’s reasons for dealing with that summons. It is sufficient to note that Mr Quach’s contention that NCAT lacked jurisdiction to hear a notice of complaint filed in the Medical Tribunal was rejected. [84] Sackville AJA also held that there was no substance to Mr Quach’s complaint concerning the conditions NCAT imposed on his registration. [85]

2. On 23 February 2015 Macfarlan JA dismissed a motion Mr Quach filed seeking a stay of the NCAT proceedings. [86]

3. On 4 March 2015 Mr Quach filed a motion in the proceedings commenced by the First Summons seeking an order removing the Commission as a party to that application. [87] That motion was dismissed because the Commission was the only contradictor in the Court and was, accordingly, a necessary party to the First Summons. [88]

4. On 25 February 2015 Mr Quach filed a Second Summons seeking a “[prohibition] order” pursuant to provisions of the HCCC Act. It appeared to be directed to a complaint that NCAT lacked jurisdiction to hear and determine a notice of complaint lodged with the Medical Tribunal prior to the establishment of NCAT. This submission was rejected on the basis that transitional provisions of the Civil and Administrative Tribunal Act 2013 (NSW) meant that the complaint was properly before NCAT. [89]

   84.    Quach NCAT (at [41]).

   85.    Ibid (at [42]).

   86.    Ibid (at [24]).

   87.    Ibid (at [19]).

   88.    Ibid (at [32]).

   89.    Ibid (at [36] – [41]).

81. The applications referred to in Quach (No 1) can be summarised as follows:

1. First, the amended summons dated 12 May 2015 filed by Mr Quach directed to identifying jurisdictional error in the NCAT decisions. [90] The Court held that no basis was disclosed for granting any of the relief sought by the amended summons and dismissed it. [91]

2. Secondly, the notices of motion Mr Quach filed, some of which were dealt with in Quach (No 1) and others dealt with by Meagher JA, as earlier explained in these reasons. As to those motions disposed of in Quach (No 1), they concerned Mr Quach’s application as to the title of the proceedings in respect of the order in which the parties were named on the amended summons. The Court held that that motion was entirely misconceived and it was dismissed. [92]

3. Thirdly, the Court dealt with Mr Quach’s motion challenging a decision made by the Court of Appeal Registrar on 7 December 2015 on the basis of Mr Quach’s contention that the Registrar had purported to review a decision of another Registrar, that this was outside his power and, accordingly, that the orders made should be set aside. The Court found that Mr Quach had failed to identify any error in the course the Registrar took and dismissed that motion with costs. [93]

4. Fourthly, Mr    Quach filed a motion seeking orders against Ms Karen Mobbs related to her exercise of the functions of the Commission and, too, judicial review of a decision of the Professional Standards Committee dated 31 October 2011. The Commission advised Mr Quach that it would object to that motion being heard, including on the basis that, in substance, none of those persons in respect of whom the orders were sought were parties to the proceedings and they were necessary parties if those orders were to be sought and, secondly, it was not possible by a notice of motion filed in the judicial review proceedings to challenge those persons’ conduct. The Court accepted those propositions but, because Mr Quach had not been fully heard in relation to that motion, it was stood over for directions before the Registrar. [94] In due course it was one of the motions with which Meagher JA dealt.

   90.    Quach (No 1) (at [3]).

   91.    Ibid (at [70]).

   92.    Ibid (at [8] – [11]).

   93.    Ibid (at [12] – [15]).

   94.    Ibid (at [16] – [18]).

82. In addition to the matters identified in Quach NCAT and Quach (No 1), Meagher JA also had regard to the motions before him. They were of a similar nature to those referred to in the earlier judgments.

83. The 21 October 2015 motion also sought to challenge historic decisions of the Medical Board, an application similar to that sought in the Second Summons and rejected.

84. The 1 March 2016 motion sought a stay of the NCAT decisions, an order similar to that sought on 23 February 2015 and rejected. [95] It also sought an order in relation to removing conditions on Mr Quach’s registration, an order earlier sought in the First Summons and rejected.

    95.    This expanded the ambit of the 23 February 2015 motion, insofar as that application related to the disciplinary decision, whereas the 1 March application also extended to the protective orders decision.

85. In addition to the repetitive nature of the motions to which Meagher JA referred, and which were before him, Mr Quach asserted an entitlement to persist in making applications, and said he would “not terminate this proceeding.” [96]

    96.    Quach (No 2) (at [34]).

86. In my view, the history of Mr Quach’s applications to which Meagher JA referred, the matters with which he was required to deal and Mr Quach’s oral and written assertions concerning his entitlement to persist in making applications in this Court in relation to the proceedings provided an ample basis for his Honour to conclude that a Teoh Order should be made.

87. I would add to his Honour’s reasons, the observation that the history of Mr Quach’s applications illustrates that the problem to which Ipp JA and Brownie AJA referred in Wentworth (No 1) persists in this Court.

Teoh Order – procedural fairness

88. Mr Quach’s third complaint (1C(iii)) was amplified in his submission that Meagher JA “produced his own evidence in support of the [Commission’s] motion” of 4 March 2016. I assume that this should be a reference to the Commission’s 22 February 2016 motion in relation to which his Honour drew the parties’ attention to the decision in Teoh (No 4).

89. I have already outlined the circumstances in which Meagher JA provided a copy of Teoh (No 4) to the parties. It is appropriate for a judicial officer to draw to the attention of the parties a decision which is relevant to matters before the Court. Teoh (No 4) was clearly in that category. It would have been open to his Honour to draw the case to the parties’ attention even absent the Commission’s 22 February motion seeking an order pursuant to CPA, s 61(2)(c), bearing in mind a Court can act on its own motion to make a Teoh Order. [97]

    97.    Teoh (No 4) (at [39]).

90. Meagher JA explained the relevance of Teoh (No 4) to the order that the Commission had sought in its 22 February notice of motion, drawing the parties’ attention to the relevant passages of that decision. His Honour also afforded Mr Quach the opportunity for further time to consider the case should that be necessary. Mr Quach did not request any further time but, as I have said, made submissions opposing the order sought. Mr Quach did not point to any particular unfairness in the procedure his Honour adopted once he drew the parties’ attention to the case. No issue of any want of procedural fairness has been demonstrated. Ground 1C(iii) should be rejected.

Other matters

91. I have addressed the grounds identified in the review application. Many matters in Mr Quach’s written submissions sought to reagitate issues which were either determined by the Court of Appeal in Quach (No 1) or were the subject of the various notices of motion dismissed either by the Court of Appeal in Quach (No 1) or by Meagher JA in Quach (No 2) but are not referred to in the review application. Accordingly, these matters are outside the scope of a review of Meagher JA’s decision pursuant to s 46(4).

Law reform

92. At the conclusion of the judgment in Bhamjee,[98] the Court summarised its guidance as to the circumstances in which a civil restraint order, an extended civil restraint order or a general civil restraint order might be made. It is unnecessary to set out those passages. It is sufficient to observe that they were intended to deal with curbing litigants who had engaged in vexatious conduct of increasing degrees of seriousness. As the foregoing account of the various litigants who have been the subject of Teoh-like orders indicates, that is a tendency evident in cases in this jurisdiction.

    98.    (at [53]).

93. In 2004 the guidance given in Bhamjee was codified in Practice Direction 3C (Civil Restraint Orders) which supplements rule 3.11 (Power of the court to make civil restraint orders) of The Civil Procedure Rules 1998 (UK). The Practice Direction describes the types of civil restraint orders which may be made to restrain litigants from continuing to pursue vexatious litigation.

94. In my view the Rules Committee should give consideration to introducing a rule similar to rule 3.11 and making a Practice Direction in like, or similar terms to Practice Direction 3C. The rule and the Practice Direction would make transparent, particularly to litigants in person, the powers of the court to deal with repetitious applications which do not address the substance of the litigation.

Orders

95. Mr Quach has failed to identify any error of principle or that Meagher JA’s decisions were wrong in any respect.

96. I would dismiss the review application with costs.

97. MACFARLAN JA: I agree with McColl JA.

98. SACKVILLE AJA: I agree with McColl JA.

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Endnotes

Decision last updated: 19 October 2016