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

The proceedings involved an application by Mr Quach to set aside earlier orders made against him under the *Vexatious Proceedings Act 2008* (NSW). Mr Quach contended that the Court which made those earlier orders was invalidly constituted because one of its members had exceeded the age of 70 years. The New South Wales Health Care Complaints Commission and the New South Wales Civil and Administrative Tribunal were the respondents. The case was heard by Gleeson, Payne and White JJA in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether section 72 of the *Commonwealth Constitution*, which fixes the maximum age for judges of federal courts, applied to judges of the Supreme Court of New South Wales, and consequently, whether the earlier orders made by the Supreme Court were invalid. Additionally, the Court considered whether leave was required under section 14 of the *Vexatious Proceedings Act 2008* (NSW) to bring the application to set aside the vexatious proceedings orders.

The Court of Appeal held that section 72 of the *Commonwealth Constitution* does not apply to judges of State Supreme Courts. It reasoned that the Supreme Court of New South Wales is a State court, established by State legislation, and not a court created by the Commonwealth Parliament. Therefore, the age limit stipulated in section 72 did not invalidate the constitution of the bench that made the original vexatious proceedings orders. The Court also granted leave under section 14 of the *Vexatious Proceedings Act 2008* (NSW) for Mr Quach to file his notices of motion, but ultimately dismissed those motions.