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

[2018] NSWCA 175

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2018] NSWCA 175
Hearing dates:	25 July 2018
Decision date:	09 August 2018
Before:	Gleeson JA at [1] Payne JA at [28] White JA at [29]
Decision:	(1) To the extent necessary, grant leave under s 14 of the Vexatious Proceedings Act 2008 (NSW) for the filing by the plaintiff of the notices of motion on 20 November 2017 in proceedings 2015/67618, 2015/48269 and 2015/158685.  (2)   Dismiss the notices of motion filed 20 November 2017 in proceedings 2015/67618, 2015/48269 and 2015/158685.
Catchwords:	PROCEDURE – vexatious proceedings orders – where orders made under Vexatious Proceedings Act 2008 (NSW), s 8(7)(a) and (b) – where applicant prohibited from instituting further proceedings to set aside earlier orders – application by person subject to vexatious proceedings orders to set aside earlier orders – Vexatious Proceedings Act, s 9 – where contention that the Court making the vexatious proceedings order was invalidly constituted because one member of the bench exceeded the age of 70 years – Commonwealth Constitution, s 72 – whether s 72 applied to fix maximum age of judges of State Supreme Courts – whether Supreme Court of New South Wales created by the Commonwealth Parliament – whether leave required to apply to set aside vexatious proceedings order – Vexatious Proceedings Act, s 14
Legislation Cited:	4 Geo IV, c 96 (1823) (Imp) Commonwealth Constitution, ss 1, 71, 72, 77 Judiciary Act 1903 (Cth), ss 39, 78B Supreme Court Act 1970 (NSW), ss 22, 36, 37, 38 Vexatious Proceedings Act 2008 (NSW), ss 8, 14
Cases Cited:	Attorney-General of the Commonwealth of Australia v Alinta Limited (2008) 233 CLR 542; [2008] HCA 2 Attorney General in and for the State of New South Wales v Potier (No 2) [2015] NSWSC 238 Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; [2006] HCA 44 Kable v The Director of Public Prosecutions for the State of New South Wales (1996) 189 CLR 51; [1996] HCA 24 Klewer v Attorney General in and for the State of New South Wales [2010] NSWCA 219 Potier v Attorney General in and for the State of New South Wales [2014] NSWCA 256 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 Civil and Administrative Tribunal [2015] NSWCA 63 Quach v Health Care Complaints Commission [2015] NSWCA 187 Quach v Health Care Complaints Commission (No 2) [2015] NSWCA 311 Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10 Quach v Health Care Complaints Commission [2016] NSWCA 49 Quach v New South Wales Health Care Complaints Commission (No 3) [2016] NSWCA 284 Quach v New South Wales Health Care Complaints Commission (No 4) [2016] NSWCA 285 Quach v New South Wales Health Care Complaints Commission (No 5) [2016] NSWCA 366 Quach v New South Wales Health Care Complaints Commission (No 6) [2017] NSWCA 183 Quach v New South Wales Civil and Administrative Tribunal (No 2) [2017] NSWCA 182 Quach v New South Wales Civil and Administrative Tribunal; Quach v Health Care Complaints Commission [2015] HCASL 131 Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Livestock Corp (No 2) (1980) 29 ALR 333 The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49; [1982] HCA 13 Viavattene v Attorney General of New South Wales [2014] NSWCA 218 Waterside Workers’ Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434; [1918] HCA 56
Texts Cited:	A Twomey, The Constitution of New South Wales (The Federation Press, 2004)
Category:	Principal judgment
Parties:	Michael Quach (Applicant) NSW Health Care Complaints Commission (First Respondent) NSW Civil and Administrative Tribunal (Second Respondent) Attorney General of NSW (Amicus Curiae)
Representation:	Counsel: Self-represented (Applicant) J Hutton (Attorney General of NSW)   Solicitors: N/A (Applicant) Crown Solicitor’s Office (Attorney General of NSW)
File Number(s):	2015/158685; 2015/67618; 2015/48269

Judgment

1. GLEESON JA: On 20 October 2017, the Court made orders under s 8(7)(a) of the Vexatious Proceedings Act 2008 (NSW) that any interlocutory proceedings, including notices of motion filed 8 August 2017 in three proceedings in this Court (proceeding 2015/67618, proceeding 2015/48269, and proceeding 2015/158685) be stayed, and a further order under s 8(7)(b) of the Vexatious Proceedings Act that the plaintiff, Mr Michael Quach, is prohibited from instituting any further proceedings in New South Wales relating to the subject matter of proceedings 1420086 and 1420065 in the New South Wales Civil and Administrative Tribunal (NCAT) (entitled “Health Care Complaints Commission v Quach”) or relating to the three proceedings in this Court (the vexatious proceedings orders). [1]

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

2. Each of the three proceedings in this Court involved applications by Mr Quach for judicial review of certain decisions of NCAT in medical disciplinary proceedings brought against Mr Quach by the Health Care Complaints Commission (the Commission). The proceedings before NCAT resulted in findings of professional misconduct and of “impairment” and lack of “competence” to practice by reason of that impairment, and cancellation of Mr Quach’s registration as a medical practitioner. The judicial review applications by Mr Quach challenging the decisions of NCAT were unsuccessful in this Court. [2] Not being satisfied with the decisions of this Court, Mr Quach sought to re-litigate his contentions by making numerous further applications by way of notice of motion in this Court. Each of those further applications was unsuccessful. [3] It is not necessary for present purposes to set out the history of the proceedings before NCAT or in this Court.

   2. Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63; Quach v New South Wales Health Care Complaints Commission [2015] NSWCA 187.

   3. Quach v New South Wales Health Care Complaints Commission (No 2) [2015] NSWCA 311; Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10; Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 49; Quach v New South Wales Health Care Complaints Commission (No 3) [2016] NSWCA 284; Quach v New South Wales Health Care Complaints Commission (No 4) [2016] NSWCA 285; Quach v New South Wales Health Care Complaints Commission (No 5) [2016] NSWCA 366; Quach v New South Wales Health Care Complaints Commission (No 6) [2017] NSWCA 183; Quach v New South Wales Civil and Administrative Tribunal (No 2) [2017] NSWCA 182. Mr Quach also made two unsuccessful special leave applications to the High Court: Quach v New South Wales Civil and Administrative Tribunal; Quach v Health Care Complaints Commission [2015] HCASL 131.

3. On 25 July 2017, Mr Quach was ordered to show cause why orders under the Vexatious Proceedings Act, ss 8(7)(a) and (b) should not be made. After a hearing on 4 September 2017 before the Court (constituted by Gleeson and Simpson JJA and Sackville AJA), the Court made orders on 20 October 2017 under the Vexatious Proceedings Act as indicated.

Present application

4. On 20 November 2017, Mr Quach filed three notices of motion in identical terms seeking an order in each of the proceedings in this Court as follows:

Set aside the Vexatious Order of Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267.

5. The stated ground for the relief sought in each notice of motion is as follows:

The Vexatious Proceedings Act 2008 (NSW) does not apply to [the Court of Appeal proceedings] because the Court was not properly convened pursuant to s 72 of the Australian Constitution.

6. Mr Quach’s application to set aside the vexatious proceedings order is made under s 9 of the Vexatious Proceedings Act which provides:

9 Order may be varied or set aside

(1) An authorised court may, by order, vary or set aside a vexatious proceedings order that the court has made.

(2) An authorised court may make the order of its own motion or on the application of:

(a) the person subject to the vexatious proceedings order, or

(b) a person referred to in section 8 (4).

(3) An application may be made by a person referred to in section 8 (4) (e) only with the leave of the authorised court.

(4) An authorised court may decline to consider an application to vary or set aside a vexatious proceedings order made by the person subject to the order if the court is not satisfied that the application is materially different from an earlier application to vary or set aside the same order that was not successful.

7. As Mr Quach is the person subject to the vexatious proceedings orders, he has standing to make an application under s 9(2)(a) to set aside the orders made by this Court on 20 October 2017.

The Constitutional argument

8. In written submissions filed on 27 November 2017, Mr Quach contended that the Court that made the vexatious proceedings orders on 20 October 2017 was invalidly constituted under s 72 of the Commonwealth Constitution because Sackville AJA exceeded the age of 70 years, which is “the maximum age for Justices of any Court created by Parliament”. According to the submission it followed, that the Court did not have the power to make orders under the Vexatious Proceedings Act and that the orders made on 20 October 2017 must be set aside.

9. Section 72 of the Constitution relevantly provides:

The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age.

…

Subject to this section, the maximum age for Justices of any court created by the Parliament is 70 years.

10. It may be accepted that at the time of the show cause hearing, Sackville AJA had reached the age of 70 years, but had not reached the age of 77 years. As a retired judge of the Federal Court of Australia, his Honour was qualified to be appointed to act as a Judge of Appeal: Supreme Court Act 1970 (NSW), s 37(1), (2)(b), and (4A).

11. Given that the argument advanced by Mr Quach raised an issue under the Constitution, the Registrar of the Court directed Mr Quach on 19 February 2018 to issue notices under s 78B of the Judiciary Act 1903 (Cth) to all Attorneys-General of the Commonwealth, States and Territories. There is affidavit evidence that those notices have been given to each of the Attorneys-General. None have sought to appear or intervene in the present applications.

12. However, the Attorney General for New South Wales has, pursuant to orders made by the Registrar on 27 November 2017, filed written submissions as amicus curiae. On 19 February 2018, the Court invited the Attorney General to submit revised submissions addressing a number of matters, including whether the Attorney General should be the contradictor. In written submissions filed on 18 April 2018, the Attorney General submitted that this was an appropriate case in which to seek to intervene as amicus curiae, given that there would otherwise be no contradictor to Mr Quach’s arguments. [4] That leave was granted at the commencement of the hearing.

    4. Attorney-General of the Commonwealth of Australia v Alinta Limited (2008) 233 CLR 542; [2008] HCA 2 at [68] (Hayne J) and [149] (Crennan and Kiefel JJ), (Gleeson CJ and Gummow J agreeing).

13. The written submissions of the Attorney General raised issues as to whether the leave requirement in s 14 of the Vexatious Proceedings Act applies to Mr Quach’s application under s 9 to set aside the vexatious proceedings orders and whether Mr Quach should be permitted to rely upon a new point which had not been raised at the show cause hearing. It is convenient, however, to immediately turn to the substance of Mr Quach’s argument.

Decision

14. Mr Quach’s reliance on s 72 of the Constitution is misconceived. Section 72 of the Constitution deals with the appointment, tenure and remuneration, including the maximum age, for Justices of the High Court and judges of other federal courts only. That is, judges of the courts created by the Commonwealth Parliament. [5] That the reference in s 72 of the Constitution to courts created by the “Parliament” is a reference to the Parliament of the Commonwealth is made plain by s 1 of the Constitution which provides:

1 Legislative power

The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called The Parliament, or The Parliament of the Commonwealth.

5. The Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49 at 63; [1982] HCA 13 (Mason J), citing Waterside Workers’ Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434 at 442; [1918] HCA 56 (Griffith CJ). See also Kable v The Director of Public Prosecutions for the State of New South Wales (1996) 189 CLR 51 at 115; [1996] HCA 24 (McHugh J).

15. Plainly, the Supreme Court of New South Wales is not a court created by the Commonwealth Parliament. The Supreme Court was established under the terms of the Act 4 George IV c 96 and the Third Charter of Justice for New South Wales issued in 1823. [6] It is not necessary to refer to the subsequent legislative history with respect to the Supreme Court. It is sufficient to note that s 22 of the Supreme Court Act provides that the Supreme Court of New South Wales as formerly established as the superior court of record in New South Wales is hereby continued.

    6. A Twomey, The Constitution of New South Wales (The Federation Press, 2004) at 2, 718.

16. Section 38 of the Supreme Court Act provides that for the more convenient despatch of business, the Court shall be divided into the Court of Appeal and two Divisions – the Common Law Division and the Equity Division. Section 37 of the Supreme Court Act provides for the appointment of qualified persons to act as a Judge or a Judge of Appeal. Section 36(4) of the Supreme Court Act provides that the fact that any judge sits and acts as an additional Judge of Appeal shall be sufficient evidence of the Judge’s authority to do so, and no judgment or order of the Court of Appeal, while the Judge so acts, shall be questioned on the ground that the occasion for the Judge’s so acting had not arisen or had ceased to exist.

17. Mr Quach’s argument concerning the permissible maximum age of an acting Judge of Appeal of this Court proceeds upon an incorrect premise. Contrary to Mr Quach’s contention, the Supreme Court of New South Wales is not a court created by the Commonwealth Parliament. Accordingly, there is no inconsistency between the provisions relating to the appointment and tenure of judges of courts created by the Commonwealth Parliament and the provisions of s 37 of the Supreme Court Act dealing with the appointment of qualified persons to act as a Judge or a Judge of Appeal.

18. In oral argument, Mr Quach also referred to s 71 of the Constitution which deals with the vesting of federal jurisdiction in the High Court, such other federal courts as the Parliament creates and in such other courts as it invests with federal jurisdiction. Mr Quach submitted that, given that State Supreme Courts have been invested with federal jurisdiction,[7] the appointment and tenure of judges of State Supreme Courts is governed by s 72 of the Constitution. I do not agree.

    7. Under Judiciary Act, s 39(2).

19. Plainly, s 71 of the Constitution draws a distinction between the vesting of federal jurisdiction in courts created by the Commonwealth Parliament [8] and such other courts as it invests with federal jurisdiction, being courts not created by the Commonwealth Parliament, including existing State courts. [9] The vesting of federal jurisdiction, relevantly, in State Supreme Courts by s 39(2) of the Judiciary Act does not have the consequence that those courts are to be taken as having been created by the Commonwealth Parliament.

    8. Waterside Workers’ Federation of Australia v JW Alexander Ltd at 468 (Isaacs and Rich JJ).

    9. Ibid at 441 (Griffith CJ).

20. One further matter should be mentioned for completeness. That there are differences in the provisions relating to the appointment and tenure of judges in s 72 of the Constitution with respect to courts created by the Commonwealth Parliament, and State legislation such as s 37 of the Supreme Court Act, does not substantially impair the institutional integrity of the Supreme Court, and is not incompatible with its role as a repository of federal jurisdiction. As Gleeson CJ explained in Forge v Australian Securities and Investments Commission:[10]

It is s 72 of the Constitution which, in its provisions as to judicial appointment, tenure and remuneration, deals with topics relevant to judicial independence. Those provisions are said, by s 72, to apply to the Justices of the High Court and of other courts created by the Parliament. There is nothing in the Constitution that says, either expressly or by implication, that State Supreme Courts, or other State courts that may be invested with federal jurisdiction, must be subject to like provisions relating to appointment, tenure and remuneration. At the time of Federation they were not; and they never have been since then. There are, of course, substantial similarities between the provisions applicable to State Supreme Courts and those found in s 72; but there are differences. In Re Governor, Goulburn Correctional Centre; Ex parte Eastman [(1999) 200 CLR 322)], it was held that s 72 did not apply to the Supreme Court of the Australian Capital Territory. Obviously, it does not apply to the Supreme Court of New South Wales. Its terms are such that it could not possibly do so. (Emphasis added)

10. (2006) 228 CLR 45; [2006] HCA 44 at [38].

21. The same point had been made earlier in Kable v The Director of Public Prosecutions for the State of New South Wales. [11] Gaudron J observed that s 72 of the Constitution was concerned exclusively with the appointment, tenure and remuneration of the Justices of the High Court and federal courts created by the Parliament and that:

Once it is accepted that State courts are creatures of the States and are constitutionally recognised as such, it follows that it is for the States and for the States alone to determine the appointment, tenure and remuneration of State judges and the structure, organisation and jurisdictional limits of State courts. [12]

Dawson J similarly observed that s 72 of the Constitution “plainly” did not extend to “State courts which may be invested with federal jurisdiction under s 77(iii)” of the Constitution. [13] McHugh J also remarked:

… the Constitution does not protect the appointment, remuneration and tenure of the judges of State courts invested with federal jurisdiction although it protects the judges of federal courts in respect of those matters. [14]

11. (1996) 189 CLR 51; [1996] HCA 24.

12. Ibid at 102.

13. Ibid at 80-81.

14. Ibid at 115.

Other matters

22. Section 14 of the Vexatious Proceedings Act provides:

14 Application for leave to institute proceedings

(1) This section applies to a person (“the applicant”) who is:

(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or

(b) acting in concert with another person who is subject to an order referred to in paragraph (a).

(2) The applicant may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting.

(3) The applicant must file an affidavit with the application that:

(a) lists all occasions on which the applicant has applied for leave:

(i) under this section, or

(ii) before the commencement of this section—as required by an order under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970, and

(b) lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section, and

(c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant.

(4) The applicant must not serve a copy of the application or affidavit on any person unless:

(a) an order is made under section 16 (1) (a), and

(b) the copy is served in accordance with the order.

(4A) An authorised court may decline to consider an application made under this section if the court is not satisfied that the application is materially different from an earlier application under this section that was dismissed under section 15 (1) (b) or (c).

(5) An appropriate authorised court may dispose of the application by:

(a) dismissing the application under section 15, or

(b) granting the application under section 16.

(6) Despite any other Act or law, the applicant may not appeal from a decision disposing of the application.

23. The Attorney General submitted that the s 14 leave requirement applies to an application to vary orders made under s 9 by the person subject to the vexatious proceedings order. Mr Quach did not advance any submissions on this issue. As a general principle of statutory interpretation, provisions of general application give way to specific provisions applicable to the same subject matter when in conflict. [15] On this approach, the general provision in s 14 making a requirement for leave in respect of the commencement of all proceedings by the person the subject of the vexatious proceedings order would give way to the specific provision in s 9 to vary or set aside such an order, in respect of which there is no express requirement for leave by the person subject to the vexatious proceedings order. [16]

    15. Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Livestock Corp (No 2) (1980) 29 ALR 333 at 347 (Deane J).

    16. Cf the express requirement for leave under s 9(3) in respect of the category of applicant referred to in s 8(4)(e), that is, a person who, in the opinion of the Court, has a sufficient interest in the matter (to make application for a vexatious proceedings order).

24. It should be observed that the construction argument advanced by the Attorney General departs from the position previously taken by the Attorney General with respect to the relationship between s 9 and s 14 of the Vexatious Proceedings Act.[17] However, it is not necessary to determine the construction question to dispose of the present applications. Even if the s 14 leave requirement applies to Mr Quach’s present applications, it would be appropriate to grant such leave to Mr Quach to file the three notices of motion, given that the argument advanced by Mr Quach relied upon a constitutional matter. For the avoidance of doubt, to the extent necessary, leave should be granted under s 14.

    17. See Attorney General in and for the State of New South Wales v Potier (No 2) [2015] NSWSC 238 at [9] (McCallum J). As to whether the s 14 leave requirement applies to an appeal from a vexatious proceedings order see: Viavattene v Attorney General of New South Wales [2014] NSWCA 218 at [2]; Klewer v Attorney General in and for the State of New South Wales [2010] NSWCA 219 at [26]-[27]; and Potier v Attorney General in and for the State of New South Wales [2014] NSWCA 256 at [2].

25. For the same reason, that Mr Quach did not raise the present argument during the show cause hearing, and has failed to explain why the argument was not advanced at the earlier hearing, is not of itself a reason why the Court should not deal with the substance of Mr Quach’s constitutional argument which goes to the validity of the appointment of Sackville AJA to act as a Judge of Appeal.

26. That is not to say that ordinarily a person the subject of a vexatious proceedings order can rely on a new point on an application under s 9 to set aside a vexatious proceedings order, when the point could, and should have been taken earlier at the show cause hearing. That question may be deferred for determination in an appropriate case.

Conclusion and Orders

27. The three notices of motion filed 20 November 2017 seeking to set aside the vexatious proceedings orders made by the Court made on 20 October 2017 should be dismissed. I propose the following orders:

1. To the extent necessary, grant leave under s 14 of the Vexatious Proceedings Act 2008 (NSW) for the filing by the plaintiff of the notices of motion on 20 November 2017 in proceedings 2015/67618, 2015/48269 and 2015/158685.

2. Dismiss the notices of motion filed 20 November 2017 in proceedings 2015/67618, 2015/48269 and 2015/158685.

28. PAYNE JA: I agree with Gleeson JA.

29. WHITE JA: I agree with Gleeson JA.

**********

Endnotes

Amendments

14 August 2018 - [10] - (2(b)) amended to read (2)(b)

"Griffiths CJ" amended to read Griffith CJ in Endnotes 5 and 9

Decision last updated: 14 August 2018