Quach v NSW Health Care Complaints Commission

[2020] NSWSC 523

Supreme Court

New South Wales

Medium Neutral Citation:	Quach v NSW Health Care Complaints Commission [2020] NSWSC 523
Hearing dates:	11 May 2020
Date of orders:	11 May 2020
Decision date:	11 May 2020
Jurisdiction:	Common Law
Before:	Fagan J
Decision:	(1) Declare that the proceeding commenced by the filing of the plaintiff’s summons herein has been instituted in contravention of s 13(1) of the Vexatious Proceedings Act 2008 (NSW), by reason of order (5) made by the Court of Appeal on 20 October 2017 in proceeding entitled Quach v NSW Health Care Complaints Commission 2015/158685. (2) Declare that these proceedings have been stayed by force of s 13(2) of the Vexatious Proceedings Act 2008 (NSW) from their inception and are taken to have been dismissed with effect from 30 March 2020. (3) Order that the plaintiff pay the defendant’s costs of the proceeding.
Catchwords:	CIVIL PROCEDURE – parties – vexatious litigants – leave to institute proceedings refused
Legislation Cited:	Vexatious Proceedings Act 2008 (NSW)
Cases Cited:	Health Care Complaints Commission v Quach [2015] NSWCATOD 2 Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32 Quach v Marks [2020] NSWSC 524
Category:	Procedural and other rulings
Parties:	Michael Quach (plaintiff) Health Care Complaints Commission
Representation:	Counsel: N/A A Britt (defendant)   Solicitors: Michael Quach (self-represented plaintiff) Solicitor for Health Care Complaints Commission
File Number(s):	2020/67368
Publication restriction:	No

Judgment

1. In this proceeding Mr Quach is self-represented. By his summons filed on 2 March 2020 he claims the following orders:

1   Finding the New South Wales Health Care Complaints Commission is in contempt of court, in breaching a Court of Appeal order by way of:

a   Notice to Produce 18 May 2014

b   Undertaking by NSW Civil and Administrative Tribunal to produce the document sought in the Notice to Produce 18 May 2014.

2   Order transcript for NCAT file numbers 2014/382560-001 and 2014/382581-001 HCCC v Quach on the 27 February 2020.

The summons also claims, in order 3, a warrant for the arrest of the Chief Executive Officer of the New South Wales Health Care Complaints Commission (“HCCC”). In order 4 there are set out grounds for orders 1 and 2.

2. The proceeding is before the Court for consideration of whether Mr Quach requires leave to institute it, having regard to an order against him under the Vexatious Proceedings Act 2008 (NSW) made by the Court of Appeal on 20 October 2017 (see [8] below). I have found that leave is required under the Act and that the proceeding has been instituted in contravention of s 13(1). Accordingly, the summons is taken to have been stayed from the date of filing and to have been dismissed at the expiry of 28 days thereafter, that is, on 30 March 2020: s 13(2) and (3). I have found that there is no foundation for the proceeding and that leave would not have been granted if applied for. Accordingly, there would be no warrant for giving Mr Quach an opportunity to make an application under s 14 of the Act for the purpose of regularising the proceeding.

3. Mr Quach also filed in this Division on 11 March 2020 a summons alleging contempt, upon similar particulars, against Acting District Court Judge Marks (Quach v Marks, Common Law Division, 2020/78064). I have dismissed that summons on the same grounds: Quach v Marks [2020] NSWSC 524.

4. In the summons against HCCC that is now before the Court, the grounds asserted with respect to order 1 are that at a directions hearing in the Civil and Administrative Tribunal (“NCAT”) on 27 February 2020 the plaintiff asked the presiding member, Marks ADCJ, for his “credential in relations [sic] to his appearance on 10 September 2014 hearing”. The hearing that commenced before NCAT on 10 September 2014 concerned two complaints brought by the HCCC against Mr Quach for professional misconduct as a medical practitioner. The hearing resulted in Mr Quach being deregistered: Health Care Complaints Commission v Quach [2015] NSWCATOD 2; Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32. Those decisions were delivered by the Tribunal on 5 February 2015 and 21 April 2015 respectively.

5. The grounds in the present summons state that the HCCC “interfered with the administration of justice” by submitting to Marks ADCJ on 27 February 2020 that he was not required to substantiate his “credentials”. The NCAT file numbers of the proceedings that were before Marks ADCJ on 27 February 2020 are 2014/382560 and 2014/382581, both entitled HCCC v Quach. Having called up those files from the Tribunal registry it has been ascertained that they relate to the substantive professional misconduct proceedings that were heard in late 2014 and decided on 5 February 2015 and 21 April 2015. The file numbers originally assigned to the matters by NCAT, as referred to in the Tribunal’s judgments cited above, were 1420065 (now 2014/382560-001) and 1420086 (now 2014/382581-001). The new numbers referred to in order 2 of Mr Quach’s summons had been assigned by the time the matters came back before Marks ADCJ on 27 February 2020 to deal with a costs application by Mr Quach arising from the original professional misconduct hearing.

6. The ground asserted with respect to order 2 in the summons now before the Court is simply that NCAT has refused to provide a transcript of the hearing of 27 February 2020. Annexed to Mr Quach’s supporting affidavit is a letter from the Registrar of NCAT advising that no transcript has been prepared and that he could request a sound recording by completing a form that is available online.

7. As to order 1 claimed in the summons, the evidence concerning a notice to produce and an alleged undertaking by NCAT is summarised at pars [7]-[12] of the related judgment Quach v Marks referred to at [3] above.

8. In the Court of Appeal Mr Quach generated extensive interlocutory activity in proceeding 2015/158685. He also commenced two other matters in that court. On 20 October 2017 the Court of Appeal made the following order:

(5) Pursuant to s 87(b) of the Vexatious Proceedings Act 2008 (NSW), 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 proceedings 2015/158685, 2015/67618 and 2015/48269 in the New South Wales Court of Appeal.

9. After 20 October 2017 further notices of motion filed by Mr Quach in proceeding 2015/158685 were entertained by the Court of Appeal. There appears to be one notice of motion still to be determined.

10. Mr Quach’s present summons against HCCC relates to both the subject matter of the professional misconduct proceedings against him before NCAT and to his proceedings against NCAT and HCCC in this Division and in the Court of Appeal (Court of Appeal proceeding 2015/158685). Hence, by operation of the vexatious proceedings order of 20 October 2017, the institution of the proceeding now before the Court would require leave. It does not appear to be a requirement of the Act that either the question whether leave is necessary under the particular order or the question whether leave should be granted should be referred to the Court of Appeal.

11. Mr Quach has not applied for leave under s 14 of the Vexatious Proceedings Act. If he did I would refuse the application on the ground that “there is no prima facie ground for the proceedings”: s 15(1)(c). His summons is frivolous and vexatious and no reasonable cause of action or foundation for the relief claimed is disclosed. Those conclusions follow from these circumstances:

1. The notice to produce is not a “Court of Appeal order” as asserted in par 1a of the summons.

2. The notice was not addressed to either party in the proceedings but was apparently served on NCAT. There is no indication that it was served on HCCC or that HCCC would have any documents of the type referred to in the notice, concerning Marks ADCJ’s appointment to NCAT.

3. If any obligations at all were cast upon HCCC by the notice to produce issued in 2015, they would not have been breached by the conduct alleged, namely, by HCCC submitting to Marks ADCJ nearly six years later, on 27 February 2020, that he “did not have to answer the question of his credentials”.

4. With respect to par 1b of the summons, Mr Quach is unable to substantiate that NCAT gave any undertaking to produce documents sought in the notice. As explained in the related judgment, NCAT simply answered the notice to produce on 29 June 2015 and thereby discharged its obligations.

5. If NCAT had in some sense given an undertaking to some person to produce documents, that would not be a foundation for characterising HCCC’s submission to Marks ADCJ on 27 February 2020 as contempt by HCCC or by anyone else. There is a complete lack of connection between these matters.

6. With respect to the claim in order 2, there is no legal basis for this Court to direct HCCC to provide Mr Quach with a transcript of proceedings in NCAT.

12. For these reasons declarations and orders will be entered as follows:

1. Declare that the proceeding commenced by the filing of the plaintiff’s summons herein has been instituted in contravention of s 13(1) of the Vexatious Proceedings Act 2008 (NSW), by reason of order (5) made by the Court of Appeal on 20 October 2017 in proceeding entitled Quach v NSW Health Care Complaints Commission 2015/158685.

2. Declare that these proceedings have been stayed by force of s 13(2) of the Vexatious Proceedings Act 2008 (NSW) from their inception and are taken to have been dismissed with effect from 30 March 2020.

3. Order that the plaintiff pay the defendant’s costs of the proceeding.

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Decision last updated: 11 May 2020