Quach v New South Wales Health Care Complaints Commission (No 6)

1. [1]

   GLEESON JA: Before the Court are two notices of motion filed by the applicant, Mr Michael Quach, in proceeding 2015/158685. The respondents to the motion are identified as the New South Wales Health Care Complaints Commission (Commission), the New South Wales Civil and Administrative Tribunal (NCAT) and the Attorney General of New South Wales (Attorney General).

2. [2]

   The motions are directed to challenging earlier decisions of this Court with the ultimate aim of setting aside two decisions of NCAT in February 2015 and April 2015, referred to as the disciplinary or Stage One decision (Health Care Complaints Commission v Quach [2015] NSWCATOD 2) and the protective orders or Stage Two decision (Health Care Complaints Commission v Quach [2015] NSWCATOD 32).

Background

1. [3]

   This matter has a long history. The background is relevantly set out in Quach v New South Wales Health Care Complaints Commission (No 3) [2016] NSWCA 284 (McColl JA, Macfarlan JA and Sackville AJA agreeing) (Quach (No 3)) (footnotes omitted) as follows:

2. [4]

   The subsequent history of this matter is relevantly set out in Quach v New South Wales Health Care Complaints Commission (No 4) [2016] NSWCA 285 (Quach (No 4)) and Quach v New South Wales Health Care Complaints Commission (No 5) [2016] NSWCA 366 (Quach (No 5)).

3. [5]

   In Quach (No 4), the Court observed (footnotes omitted) as follows:

4. [6]

   In Quach (No 5), after referring to the above history set out in Quach (No 4), the Court observed (footnotes omitted) as follows:

5. [7]

   In Quach (No 5), the Court held that Mr Quach had not demonstrated any reason why his 26 October 2016 motion (the October 2016 motion) should not be dismissed as vexatious and as an abuse of process. Accordingly, the October 2016 motion was summarily dismissed.

The present motions

1. [8]

   Notwithstanding the history set out above, on 19 December 2016 Mr Quach filed a notice of motion (the December 2016 motion) seeking relief which again challenges the decision of Meagher JA in Quach v New South Wales Health Care Complaints Commission (No 2) [2016] NSWCA 49 (Quach (No 2)). Mr Quach also challenges the decisions of this Court in Quach (No 3) and Quach (No 4).

2. [9]

   On 15 March 2017, Beazley P directed Mr Quach to show cause why the December 2016 motion should not be dismissed as vexatious and an abuse of process, and directed Mr Quach to file and serve any submissions opposing such an order by 22 March 2017.

3. [10]

   On 14 March 2017 Mr Quach filed a further notice of motion (the March 2017 motion) seeking relief based on allegations of contempt of Court against, among others, the Commission and the Attorney-General. He sought relief again challenging the decision of Meagher JA in Quach (No 2) and also the decisions of this Court in Quach (No 4) and Quach (No 5).

4. [11]

   On 19 May 2017, Meagher JA directed Mr Quach to show cause why the March 2017 motion should not be summarily determined by the Court in chambers as vexatious and an abuse of process, and directed Mr Quach to file submissions (in accordance with the Teoh Order made by his Honour in Quach (No 2)) by 9 June 2017.

5. [12]

   Mr Quach filed submissions dated 20 March 2017 and 1 June 2017 respectively.

6. [13]

   The question to be determined by the Court in chambers is whether the December 2016 motion and the March 2017 motion should each be summarily dismissed as vexatious and an abuse of process, or whether the material filed by Mr Quach warrants a hearing in which any respondent to the motion would be required to participate.

December 2016 motion

1. [14]

   Mr Quach’s December 2016 motion seeks the following orders:

2. [15]

   For the reasons that follow, this motion should be dismissed as vexatious and an abuse of process.

3. [16]

   Order 2 of the December 2016 motion seeks to re-agitate matters already determined by the Court. The attempt to “nullify” the decision of Meagher JA in Quach (No 2) ignores that:

4. [17]

   There is no merit in the challenge to the decision of Meagher JA in Quach (No 2), having regard to this Court’s decisions in Quach (No 3) and Quach (No 5).

5. [18]

   Orders 3, 4, 5 and 6 of the December 2016 motion seek to re-agitate matters dealt with by this Court in Quach (No 4) and Quach (No 5).

6. [19]

   In Quach (No 4), the Court dismissed Mr Quach’s motions dated 6 June 2016, 26 July 2016 and 16 August 2016 as vexatious and an abuse of process. In Quach (No 5), the Court dismissed Mr Quach’s October 2016 motion as vexatious and an abuse of process.

7. [20]

   Insofar as Mr Quach contends that the Court could not deal with the motions of 6 June 2016, 26 July 2016 and 16 August 2016 without first granting a review of Meagher JA’s decision in Quach (No 2), and accordingly the decision of this Court in Quach (No 4) is “pre-judgment”, that argument is misconceived and hopeless. The motions of 6 June 2016, 26 July 2016 and 16 August 2016 were dealt with by the Court in Quach (No 4) in chambers, pursuant to the Teoh Order and were dismissed by the Court as vexatious and an abuse of process.

8. [21]

   No purpose would be served in requiring the respondents to deal with the December 2016 motion. Mr Quach has not shown cause why the December 2016 motion should not be dismissed as vexatious or an abuse of process.

March 2017 motion

1. [22]

   Mr Quach’s March 2017 motion seeks the following orders:

2. [23]

   For the reasons that follow, this motion should also be dismissed as vexatious and an abuse of process.

3. [24]

   Under the heading “Grounds for the Notice of Motion”, Mr Quach contends that the Commission breached “exhaustive undertakings” given to this Court on 29 June 2015 not to enforce certain costs orders until his two applications for special leave to appeal to the High Court had been determined by the High Court.

4. [25]

   This contention requires brief reference to the following matters by way of background.

5. [26]

   The two applications for special leave to appeal to the High Court concerned earlier (and separate) proceedings in this Court (proceedings 2015/482869 and 2015/67618) brought by Mr Quach seeking judicial review of the disciplinary or Stage One decision by NCAT made on 5 February 2015.

6. [27]

   On 24 March 2015, this Court (Basten JA, Ward JA and Sackville AJA) dismissed two summonses filed by Mr Quach seeking judicial review of the Stage One decision of NCAT: Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63 (the 2015 Application).

7. [28]

   On 13 August 2015, the High Court dismissed Mr Quach’s two applications for special leave to appeal from the judgment and orders of this Court given on 24 March 2015: Quach v New South Wales Civil and Administrative Tribunal & Anor; Quach v Health Care Complaints Commission [2015] HCASL 131.

8. [29]

   At a directions hearing before Meagher JA on 29 June 2015 (relating to this proceeding 2015/158685 and also proceedings 2015/48269 and 2015/67618), an undertaking was given to the Court by counsel on behalf of the Commission, in relation to enforcement of the costs orders made against Mr Quach by this Court on 24 March 2015 on the 2015 Application. Although the specific terms of that undertaking was not in evidence on the present motion, the terms of that undertaking as recorded in the Court’s file was as follows:

9. [30]

   There is no evidence that the Commission sought or attempted to enforce the costs orders made in its favour on the 2015 Application, prior to the High Court’s dismissal of the two special leave applications on 13 August 2015.

10. [31]

    There is no merit in Mr Quach’s contention that the Commission and/or Mr Taylor breached the undertaking given to the Court on behalf of the Commission on 29 June 2015.

11. [32]

    The assertion by Mr Quach that the Attorney General and/or Ms Hart, a solicitor in the employ of the Crown Solicitor’s Office, is guilty of criminal contempt is based on the propositon that a letter sent by Ms Hart to the Registrar of the Court of Appeal dated 16 January 2017 “interfered with the administration of justice” because the letter referred to the Teoh Order made by Meagher JA on 21 March 2016, and requested that the December 2016 motion “be dealt with in accordance with the Teoh Order, that the listing date be vacated, and that the notice of motion be referred to a judge”.

12. [33]

    The return date of the December 2016 motion was 30 January 2017. On 17 January 2017, the Registrar of the Court of Appeal informed the parties, that the return date of the December 2016 motion had been vacated, and the matter referred to the President of the Court of Appeal to determine how the motion should proceed.

13. [34]

    Having regard to the terms of the Teoh Order, it was entirely appropriate for the Crown Solicitor’s Office to request that Mr Quach’s December 2016 motion be dealt with in accordance with the Teoh Order, including that the return date of that motion be vacated and the motion be referred to a judge of this Court.

14. [35]

    There is simply no foundation for Mr Quach’s characterisation of the letter from the Crown Solicitor’s Office to the Registrar of the Court of Appeal dated 16 January 2017 as constituting a criminal contempt of court.

15. [36]

    Orders 4, 5, 6, 7 and 8 of the March 2017 motion replicate orders 4, 5, 6, 7 and 8 in the December 2016 motion. They are hopeless for the reasons already given concerning the same orders as sought in the December 2016 motion.

16. [37]

    The written submissions of Mr Quach dated 20 March 2017 also complained of the decision of the Registrar of the Court of Appeal to vacate the return date of the March 2017 motion. That course was appropriate in view of the Teoh Order. There is no substance in this complaint.

17. [38]

    Again no purpose would be served in requiring the respondents to deal with the March 2017 motion. Mr Quach has not shown cause why the March 2017 motion should not be dismissed as vexatious or an abuse of process.

Mr Quach’s further submissions

1. [39]

   On 6 July 2017, Mr Quach filed submissions (without leave) dated 5 July 2017 in proceeding 2015/67618. Those submissions were expressed to be directed to the recusal application concerning Sackville AJA in proceedings 2015/48269 and 2015/67618. Although filed in a separate proceeding, those submissions asserted that Sackville AJA must also disqualify himself from this “proceeding 2015/158685 because the appointments in this proceeding and related proceedings is and were invalid, respectively”.

2. [40]

   Although filed in a separate proceeding, it is appropriate to address this contention insofar as it also concerns this proceeding.

3. [41]

   Mr Quach contends that the terms of the commission of Sackville AJA to exercise the office of, relevantly, an acting judge of appeal “at such times and places as may be arranged with the Chief Judge of the said court”, requires the arrangement of the Chief Justice of the Supreme Court. Accordingly, the President of the Court of Appeal cannot nominate or allocate Sackville AJA to be a member of the Court to hear and determine the present motions, or earlier proceedings involving Mr Quach, because only the Chief Justice can make such arrangements.

4. [42]

   This contention must be rejected.

5. [43]

   Section 39(1) of the Supreme Court Act 1970 (NSW) relevantly provides:

6. [44]

   In Rajski v Wood (1989) 18 NSWLR 512, Hope AJA said at 526:

7. [45]

   Priestley JA agreed with Hope AJA, noting at 523, that there was nothing in s 39 of the Supreme Court Act or otherwise in the law of New South Wales which suggests that it is open to a litigant to make a challenge, by further litigation within the Court, to the administrative arrangements within the Court by which the business of the Court is allocated amongst its judges.

Notice to Produce

1. [46]

   On 27 June 2017, Mr Quach served a notice to produce on the Attorney-General in this proceeding. The notice to produce, which was returnable on 5 July 2017, sought production of the following documents:

2. [47]

   On 4 July 2017, the Registrar of the Court of Appeal made the following orders and directions:

3. [48]

   Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 34.1 provides:

4. [49]

   Mr Quach requires the leave of the Court under UCPR, r 34.1(b) before serving the notice to produce on the Attorney-General, since the return date of the notice to produce, 5 July 2017, was neither the date of any hearing in the proceedings, or a time fixed by the Court for the return of subpoenas.

5. [50]

   No submissions were filed by Mr Quach within the time fixed by the Registrar in support of the grant of leave to serve the notice to produce. Nonetheless, it would appear that the documents sought by Mr Quach relate to the contention in his further submissions dated 5 July 2017, concerning the right of Sackville AJA to hear and determine the present motions and earlier applications by Mr Quach. Since that contention has been rejected, no legitimate forensic purpose would be served by permitting Mr Quach to serve the notice to produce on the Attorney-General.

6. [51]

   Leave to serve the notice to produce dated 27 June 2017 directed to the Attorney-General should be refused.

Should the Court make orders under the Vexatious Proceedings Act 2008 (NSW)?

1. [52]

   The problem which confronts the Court and the respondents is that Mr Quach will not or cannot accept that his claims for judicial review of the Stage One and Stage Two decisions of NCAT have been determined by this Court and that further attempts to re-litigate those claims are both futile and an abuse of process.

2. [53]

   Having regard to the procedural history in this matter and in related proceedings (see Quach v New South Wales Civil and Administrative Tribunal (No 2) [2017] NSWCA 182), it seems very likely that, unless a vexatious proceedings order is made, Mr Quach will persist in seeking to re-open orders made by this Court. The consequences of further applications inevitably will be inconvenience, unnecessary expense and a waste of the Court’s limited time and resources.

3. [54]

   Accordingly, consideration should be given to making orders pursuant to the Vexatious Proceedings Act 2008 (NSW) prohibiting Mr Quach from instituting further proceedings in New South Wales relating to the subject matter of the Stage One and Stage Two decisions of NCAT or relating to the proceeding in this Court 2015/158685.

4. [55]

   Mr Quach should be given an opportunity to make written submissions in opposition to any such proposed orders. The terms of the orders that I would propose are set out below at [58(4)-(7)]. The proposed orders are in similar terms to the show cause orders made by this Court in other proceedings: see Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125 at [14].

Conclusion and Orders

1. [56]

   Each of Mr Quach’s December 2016 and March 2017 motions should be summarily dismissed as vexatious and an abuse of process.

2. [57]

   Orders should also be made giving Mr Quach an opportunity to file any written submissions showing cause as to why orders should not be made under the Vexatious Proceedings Act.

3. [58]

   Accordingly, I propose the following orders:

   1. (1)

      Notice of motion filed 19 December 2016 dismissed as vexatious and an abuse of process.

   2. (2)

      Notice of motion filed 14 March 2017 dismissed as vexatious and an abuse of process.

   3. (3)

      Refuse leave to the applicant to serve the notice to produce dated 27 June 2017 directed to the third respondent.

   4. (4)

      Order that Michael Quach, the applicant on the motions filed on 19 December 2016 and 14 March 2017 in proceeding 2015/158685, show cause why the following orders should not be made:

   5. (5)

      Direct that Michael Quach file any written submissions showing cause on or before 15 August 2017, such submissions not to exceed 15 pages in length.

   6. (6)

      If Michael Quach wishes to make oral submissions in the matter, he is to address that request for a hearing in open court in his written submissions.

   7. (7)

      The respondents to the motions are excused from attending in the matter.

4. [59]

   SIMPSON JA: I agree with Gleeson JA.

5. [60]

   SACKVILLE AJA: I agree with the orders proposed by Gleeson JA and with his Honour’s reasons.

6. [61]

   Insofar as Mr Quach has sought an order that I disqualify myself in these proceedings, I decline to do so. My reasons are the same as those given in Quach v New South Wales Health Care Complaints Commission (No 2) [2017] NSWCA 182.