FEDERAL COURT OF AUSTRALIA
Quach v RU [2023] FCA 1233
Appeal from: File number(s): ACD 91 of 2019
ACD 93 of 2019
ACD 36 of 2020Judgment of: WIGNEY J Date of judgment: 16 October 2023 Date of publication: 23 October 2023 Catchwords: PRACTICE AND PROCEDURE – applications for leave to appeal three judgments – where the first judgment involved an interlocutory decision which had already been the subject of an unsuccessful application for leave to appeal – application dismissed on the basis that it is not permissible to make a second application for leave to appeal and that in any event the decision was not attended by sufficient doubt to warrant appellate intervention – where the second judgment involved an interlocutory decision in respect of a matter of practice and procedure – application dismissed on grounds that the proposed appeal grounds were unmeritorious and the applicant would not suffer injustice if the decision was wrong in any event – where the third judgment involved the dismissal of the substantive proceeding on the basis that the applicant’s claims were not justiciable and the Court therefore had no jurisdiction – where question arose as to whether the judgment was interlocutory or final – referred to the Full Court for determination of whether leave to appeal required Legislation: Constitution
Federal Court of Australia Act 1976 (Cth) ss 24(1A), 31A, 37AH
Judiciary Act 1903 (Cth) s 78B
Service and Execution of Process Act 1992 (Cth)
Federal Court Rules 2011 (Cth) rr 8.11-8.12, 26.01, 35.13-35.14
Health Care Complaints Act 1993 (NSW)
Cases cited: Ah-Chee v Stuart [2019] FCAFC 165
Australia Bay Seafoods Pty Ltd v Northern Territory (2022) 295 FCR 443; [2022] FCAFC 180
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844
Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 186
Hurd v Zomojo Pty Ltd [2013] FCA 581
Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156
Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63
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 (No 3) [2017] ACTSC 258
Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139
Re Luck (2003) 203 ALR 1; [2003] HCA 70
Division: General Division Registry: Australian Capital Territory National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 44 Date of hearing: 16 October 2023 Counsel for the Applicant: The Appellant appeared in person Counsel for the Respondent:
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- Quach v RU [2023] FCA 1233
- Case
- [2023] FCA 1233
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CaseChat Overview and Summary
The case of Quach v RU involves Dr Quach, a former medical practitioner, who has applied for leave to appeal three judgments from the Federal Court of Australia. The first judgment was an interlocutory decision that had already been the subject of an unsuccessful application for leave to appeal. The second judgment involved an interlocutory decision concerning a matter of practice and procedure, and the third judgment dismissed the substantive proceeding on the basis that Dr Quach's claims were not justiciable and the Court therefore had no jurisdiction. The legal issues that the court was required to decide included whether it is permissible to make a second application for leave to appeal, whether the proposed appeal grounds were unmeritorious, and whether the judgment dismissing the substantive proceeding was interlocutory or final. The court dismissed the first two applications for leave to appeal on the basis that it is not permissible to make a second application for leave to appeal and that in any event the decisions were not attended by sufficient doubt to warrant appellate intervention. The court dismissed the second application on the grounds that the proposed appeal grounds were unmeritorious and the applicant would not suffer injustice if the decision was wrong in any event. The court referred the third application to the Full Court for consideration of whether leave to appeal was required or an appeal lies as of right.
The court found that Dr Quach was not entitled to make a second application for leave to appeal, as it is not permissible to make a second application for leave to appeal and that in any event the decisions were not attended by sufficient doubt to warrant appellate intervention. The court also found that the proposed appeal grounds were unmeritorious and the applicant would not suffer injustice if the decision was wrong in any event. The court referred the third application to the Full Court for consideration of whether leave to appeal was required or an appeal lies as of right because there was a real issue as to whether the order dismissing the substantive proceeding was final, in which case leave is not required. The court found that the preferable course was to refer Dr Quach’s application to the Full Court for consideration of whether leave to appeal is required. If leave to appeal is considered to be required, the Full Court can determine that issue and if leave is granted, proceed with the appeal. If the Full Court considers that leave is not required, Dr Quach’s application can be dealt with as if it were an appeal. The court also found that the matter would benefit from some case management before being heard by the Full Court. It would, for example, be appropriate for the parties to file written submissions in respect of the nature of the judgment and the need for leave to appeal.
The court found that Dr Quach was not entitled to make a second application for leave to appeal, as it is not permissible to make a second application for leave to appeal and that in any event the decisions were not attended by sufficient doubt to warrant appellate intervention. The court also found that the proposed appeal grounds were unmeritorious and the applicant would not suffer injustice if the decision was wrong in any event. The court referred the third application to the Full Court for consideration of whether leave to appeal was required or an appeal lies as of right because there was a real issue as to whether the order dismissing the substantive proceeding was final, in which case leave is not required. The court found that the preferable course was to refer Dr Quach’s application to the Full Court for consideration of whether leave to appeal is required. If leave to appeal is considered to be required, the Full Court can determine that issue and if leave is granted, proceed with the appeal. If the Full Court considers that leave is not required, Dr Quach’s application can be dealt with as if it were an appeal. The court also found that the matter would benefit from some case management before being heard by the Full Court. It would, for example, be appropriate for the parties to file written submissions in respect of the nature of the judgment and the need for leave to appeal.
Orders
Orders of the court
1. The application for extension of time and leave to appeal in ACD 91 of 2019 filed 25 November 2019 be dismissed.
2. The appellant pay the respondent’s costs of the application for extension of time and leave to appeal in ACD 91 of 2019.
3. The application for leave to appeal in ACD 93 of 2019 filed 28 November 2019 be dismissed.
4. The appellant pay the respondent’s costs of the application for leave to appeal in ACD 93 of 2019.
5. The application for extension of time and leave to appeal in ACD 36 of 2020 be referred to the Full Court for consideration of the question whether an appeal lies as of right or leave to appeal is required and:
(a) if it be determined that leave to appeal is required, determination of that application; and
(b) if it be determined that leave to appeal is not required, determination of the appeal.
6. Costs in respect of the application for an extension of time and leave to appeal in ACD 36 of 2020 be reserved and determined by the Full Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the brief reasons that follow, Dr Quach’s applications in respect of the interlocutory applications concerning matters of practice and procedure must be dismissed. As for the application relating to the judgment dismissing the substantive proceeding, the appropriate order is for the application to be referred to the Full Court for determination of, among other things, whether leave to appeal is required, or an appeal lies as of right. Background and history of the proceedings It is necessary to provide a brief outline of the background and history of the relevant proceedings. Dr Quach was once a registered medical practitioner who practiced in Sydney and Canberra. Some considerable time ago, however, the Health Care Complaints Commission (HCCC) lodged two notices of complaint against Dr Quach in the NSW Civil and Administrative Tribunal (NCAT) in relation to his care and treatment of patients in Sydney in 2008 and 2012. In 2015, NCAT found that Dr Quach was not competent to practice medicine because he suffered from an impairment. That impairment was a narcissistic personality disorder. Dr Quach applied for judicial review of NCAT’s decision. That application was dismissed by the NSW Court of Appeal in March 2015: Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63. The following month, NCAT cancelled Dr Quach’s registration as a medical practitioner: Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32. Subsequent applications by Dr Quach for special leave to appeal to the High Court from the decision of the NSW Court of Appeal were dismissed. Dr Quach also unsuccessfully sought to reagitate his arguments in the NSW Court of Appeal. That ultimately led to him being declared a vexatious litigant in respect of those proceedings: Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267. That was not, however, the end of the litigation instigated by Dr Quach arising from his deregistration. Costs orders were made in the HCCC’s favour in the proceedings concerning Dr Quach’s deregistration. The HCCC sought to enforce those costs orders. A legal officer employed by the HCCC wrote to Dr Quach in that regard. Those letters prompted Dr Quach to apply for a personal protection order (PPO) in the ACT Magistrates Court. That application was summarily dismissed in April 2016. That did not deter Dr Quach. In May 2016, he filed an appeal against the magistrate’s decision in the Supreme Court of the Australian Capital Territory. During that proceeding, Dr Quach purported to serve on the HCCC a subpoena for the production of documents. The HCCC did not produce any documents in answer to the subpoena. It contended that a provision in the Health Care Complaints Act 1993 (NSW) provided that it could not be compelled to produce documents. Dr Quach did not accept that contention and filed an application alleging that the HCCC was in contempt. That application was ultimately dismissed by Penfold J in August 2017. Her Honour found, among other things, that the Service and Execution of Process Act 1992 (Cth) (SEPA) applied to the subpoena that Dr Quach purported to have served on the HCCC and that the purported service of the subpoena was defective because Dr Quach had failed to comply with various provisions of SEPA: Quach v RU (No 1) [2017] ACTSC 233. It is worth noting that Penfold J characterised Dr Quach’s response to the arguments concerning the application of SEPA as ranging from the “obscure to the incoherent”: Quach v RU (No 1) at [41].
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Second, and in any event, it cannot sensibly be argued that Dr Quach would suffer any injustice supposing that the making of the order did involve or arise from any error. It would seem that a notice was subsequently issued, though no Attorneys-general indicated any intention to intervene. Leave was subsequently granted to the respondent to amend the defence to include the potential constitutional issue. As has already been noted, ultimately the substantive proceeding was dismissed for reasons that did not involve the constitutional issue. In all the circumstances, Dr Quach could not possibly suffer any injustice whatsoever even if the primary judge erred in some way in making the s 78B Judiciary Act order.ACD 36 of 2020 – the judgment dismissing the substantive proceeding As has already been noted, while Dr Quach has filed an application for an extension of time and leave to appeal the primary judge’s judgment dismissing the substantive proceeding, there is a real issue as to whether leave to appeal is required. It is clear that leave to appeal is required where summary judgment pursuant to s 31A of the FCA Act, or rule 26.01 of the Rules, is given in respect of a proceeding on the basis that the applicant had no reasonable prospect of successfully prosecuting the proceeding. It does not, however, appear that the primary judge dismissed the proceeding pursuant to either s 31A of the FCA Act or r 26.01 of the Rules. Dr Quach’s application was listed for final hearing. The respondent did not file any application for summary dismissal. After hearing argument, his Honour dismissed the proceeding, as opposed, to giving judgment in favour of the respondent. It is also clear that an order staying an action as an abuse of process on the basis that the application disclosed no reasonable cause of action is an interlocutory order: Re Luck (2003) 203 ALR 1; [2003] HCA 70 at [9]. An order permanently staying a proceeding as an abuse of process on the basis of res judicata or Anshun estoppel, however, is regarded as a final judgment: see Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156 at [95]-[107] (Button J, Lee J agreeing at [26]). Perhaps more importantly, it appears to be accepted that the dismissal of a proceeding for want of jurisdiction on the basis that the claims advanced are not justiciable is a final judgment, not an interlocutory judgment: Australia Bay Seafoods Pty Ltd v Northern Territory (2022) 295 FCR 443; [2022] FCAFC 180 at [73]. As discussed earlier, the main basis upon which the primary judge dismissed the substantive proceeding appears to have been that Dr Quach’s claims were not justiciable and the Court therefore had no jurisdiction. In those circumstances, and despite the fact that Dr Quach has filed an application for an extension of time and leave to appeal, there is a real issue as to whether the order dismissing his substantive proceeding was final, in which case leave is not required. In the circumstances, the preferable course is to refer Dr Quach’s application to the Full Court for consideration of whether leave to appeal is required. If leave to appeal is considered to be required, the Full Court can determine that issue and if leave is granted, proceed with the appeal. If the Full Court considers that leave is not required, Dr Quach’s application can be dealt with as if it were an appeal. The respondent conceded that this was an appropriate course and Dr Quach, not surprisingly, did not demur. It does appear to me, however, that the matter would benefit from some case management before being heard by the Full Court. It would, for example, be appropriate for the parties to file written submissions in respect of the nature of the judgment and the need for leave to appeal.
Ratio Decidendi
Legal Principle Established
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