Quach v RU

Case [2024] FCAFC 32

FEDERAL COURT OF AUSTRALIA

Quach v RU [2024] FCAFC 32

Appeal from: Application for an extension of time to appeal from Quach v RU (No 2) [2020] FCA 957
File number(s): ACD 36 of 2020
Judgment of: PERRY, MEAGHER AND SHARIFF JJ
Date of judgment: 12 March 2024
Catchwords:

PRACTICE AND PROCEDURE – where respondent in proceeding below raised Constitutional issue as to whether there was a justiciable “matter” for the purposes of Chapter III of the Constitution – notice in accordance with s 78B of the Judiciary Act 1903 (Cth) issued in proceeding below but not on appeal – submission that there was live controversy between the parties with respect to the subject matter of the alleged dispute was untenable – present application does not involve a matter arising under the Constitution or involving its interpretation for the purposes of s 78B

PRACTICE AND PROCEDURE – whether primary judgment dismissing the application on the basis the Court does not have jurisdiction was interlocutory or final –judgment final in nature and leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) therefore not required

PRACTICE AND PROCEDURE – application for an extension of time – where any appeal would have insufficient prospects of success – application dismissed with costs
Legislation:

Constitution Chapter III

Federal Court of Australia Act 1976 (Cth) s 24(1A)

Judiciary Act 1903 (Cth) s 78B

Service and Execution of Process Act 1992 (Cth) ss 30–32

Federal Court Rules 2011 (Cth) r 36.03

Domestic Violence and Protection Orders Act 2008 (ACT)
Cases cited:

Australia Bay Seafoods Pty Ltd v Northern Territory of Australia [2022] FCAFC 180; (2022) 295 FCR 443

Bechara v Bates [2018] FCA 460

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476

Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; (2022) 399 ALR 214

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344

In Re Judiciary Act 1903-1920 (1921) 29 CLR 257

Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 178 ALD 573

Lavender v Commonwealth of Australia [2022] FCA 314

Plaintiff S164/2018 v Minister for Home Affairs [2018] HCA 51; (2018) 361 ALR 8

Quach v RU (No 1) [2017] ACTSC 233

Quach v RU (No 2) [2017] ACTSC 234

Quach v RU (No 2) [2020] FCA 957

Quach v RU [2017] ACTCA 63

Quach v RU [2023] FCA 1233

Re Culleton [2017] HCA 3; (2017) 340 ALR 550
Division: General Division
Registry: Australian Capital Territory
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 31
Date of last submission/s: 21 February 2024
Date of hearing: 29 February 2024
Counsel for the Applicant: The Applicant was self-represented.
Counsel for the Respondent: Mr David Birch
Solicitor for the Respondent: NSW Crown Solicitor’s Office

ORDERS

ACD 36 of 2020
BETWEEN:

MICHAEL VAN THANH QUACH

Applicant
AND:

RU

Respondent

ORDER MADE…

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Quach v RU [2024] FCAFC 32
Case
[2024] FCAFC 32
Decision Date

CaseChat Overview and Summary

The case of Quach v RU involved the applicant, Mr Quach, seeking an extension of time to appeal a decision of the ACT Supreme Court. The respondent, RU, argued that the application was without merit and sought costs. The Federal Court was tasked with determining the merits of the application and the appropriate costs order. The court needed to decide whether the primary judgment was interlocutory or final, and whether any appeal would have sufficient prospects of success to warrant granting leave and an extension of time. Additionally, the court had to consider whether the appeal involved a matter arising under the Constitution or involving its interpretation, which would necessitate a notice in accordance with s 78B of the Judiciary Act 1903 (Cth).

The court found that the primary judgment was final in nature, thus leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) was not required. The court also determined that any appeal would have insufficient prospects of success. Furthermore, the argument that there was a live controversy between the parties with respect to the subject matter of the alleged dispute was untenable, and thus the appeal did not involve a matter arising under the Constitution or involving its interpretation for the purposes of s 78B. The court considered the reasons for the dismissal of the application for leave to appeal and the extension of time, and concluded that the application should be dismissed with costs.

The court dismissed the application for an extension of time with costs. The applicant was ordered to pay the respondent’s costs as agreed or taxed, in accordance with Rule 39.32 of the Federal Court Rules 2011. This ruling emphasised the importance of timely appeals and the necessity for applicants to demonstrate that their appeals have sufficient merit to warrant an extension of time and leave to appeal.

Orders

Orders of the court

1. The application for an extension of time within which to appeal is refused.

2. The applicant is to pay the respondent’s costs as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

No s 78B notice was issued on the appeal. However, for the reasons below, the argument that there was a live controversy between the parties with respect to the subject matter of the alleged dispute was untenable. That being so, the appeal does not in truth involve a matter arising under the Constitution or involving its interpretation for the purposes of s 78B: Re Culleton [2017] HCA 3; (2017) 340 ALR 550 at [29] (Gageler J) (cited with approval on this issue in Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476 at [44] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ), [76]–[78] (Edelman J)); Lavender v Commonwealth of Australia [2022] FCA 314 at [5] (Perry J).3. FACTUAL BACKGROUND The factual background is helpfully set out in reasons of Wigney J at [3]–‍[20]. The key aspects of the background can therefore be summarised briefly as follows.3.1 Proceedings in the ACT Supreme Court Mr Quach is a deregistered medical practitioner. The Health Care Complaints Commission (HCCC) brought proceedings in the NSW Civil and Administrative Tribunal (NCAT) which ultimately resulted in his deregistration. Mr Quach brought a large number of proceedings in the NSW courts, including in the Court of Appeal, in relations to NCAT’s decisions. In the course of those proceedings, various costs orders were made against Mr Quach in favour of the HCCC. On 18 December 2015, the respondent, a Legal Officer with the HCCC, attempted to enforce the costs orders by sending two emails to Mr Quach: see Quach v RU (No 2) [2017] ACTSC 234 at [3], [20] (Quach (No 2)). In response, on 26 February 2016, Mr Quach applied to the ACT Magistrates Court for a personal protection order (PPO) against the respondent under the (since repealed) Domestic Violence and Protection Orders Act 2008 (ACT). That application was summarily dismissed on 13 April 2016 on the basis that no reasonable cause of action was disclosed. Mr Quach instituted an appeal in the ACT Supreme Court against that summary dismissal (proceedings SCA 36 of 2016) on 5 May 2016. Importantly, in the context of those proceedings, Mr Quach caused a subpoena to be issued out of the ACT Supreme Court on 12 August 2016, directed to the HCCC with which the HCCC refused to comply. As a result, on 19 September 2016, Mr Quach filed an application seeking to have the HCCC committed for contempt of court. Following hearings of the appeal and the contempt application, Penfold J delivered two decisions on 21 August 2017. In the first decision, Quach v RU (No 1) [2017] ACTSC 233 (Quach No 1), Penfold J held that:(1)the subpoena was not validly served in accordance with s 30(1)(b) of the Service and Execution of Process Act 1992 (Cth) (SEP Act), because the period between service and the date of compliance was less than 14 days (at [23]–[26]);(2)the subpoena was not validly served in accordance with s 31 of the SEP Act, because Mr Quach failed to attach the relevant prescribed notice (at [27]–[32]);(3)the subpoena was not validly served in accordance with s 32 of the SEP Act, because Mr Quach failed to tender conduct money when the subpoena was served (at [33]–‍[35]); and(4)none of the material sought in the subpoena could be relevant to the matters raised in Mr Quach’s appeal from the Magistrate’s decision and, as the appeal had been heard and Mr Quach had abandoned the prospect of obtaining any of the documents, there would be no scope for a new subpoena to be issued in the ACT proceedings (at [56]).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In addition, similar to ground 5, ground 6 was the subject of the separate application for leave and extension of time in ACD 93/2019. That application has been dismissed in Quach v RU [2023] FCA 1233 on the grounds that it lacked any merit.6. CONCLUSION For the reasons set out above, the application for an extension of time is refused with costs.

Ratio Decidendi

Legal Principle Established

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