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

1. [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]

2. [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.

3. [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

1. [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:

2. [5]

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

3. [6]

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

4. [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

1. [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.

2. [9]

   Section 72 of the Constitution relevantly provides:

3. [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).

4. [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.

5. [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.

6. [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

1. [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:

2. [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.

3. [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.

4. [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.

5. [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.

6. [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.

7. [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]

8. [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:

Other matters

1. [22]

   Section 14 of the Vexatious Proceedings Act provides:

2. [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]

3. [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.

4. [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.

5. [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

1. [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. (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. (2)

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

2. [28]

   PAYNE JA: I agree with Gleeson JA.

3. [29]

   WHITE JA: I agree with Gleeson JA.