Quach v Horvarth

1. [1]

   HER HONOUR: This matter involves a notice of motion filed by the defendant on 4 June 2021 seeking summary judgment.

2. [2]

   The plaintiff is Dr Michael Van Thanh Quach (“Dr Quach”). The defendant is Professor John Horvath (“Professor Horvath”). Dr Quach is self-represented. He was articulate. Mr David Hume of Counsel appeared for the defendant. I took a beneficial view of the plaintiff’s “evidence” and “submissions.” Evidence appeared in his submissions and submissions were contained in Dr Quach’s affidavit dated 3 May 2021.

The amended summons

1. [3]

   By amended summons filed 27 May 2021 the plaintiff seeks that the Court set aside the decision of Professor Horvarth to order a Schedule 1 Inquiry, under the Medical Practice Act 1992 (NSW) (“Medical Practice Act”) as at 19 January 1999.

2. [4]

   As evidence of the “decision” said to have been made, Dr Quach relies on a document entitled “Notice of Inquiry” (“the Notice”) dated 19 January 1999 and signed by Professor Horvarth, then President of the Medical Board. The notice reads:

3. [5]

   The “Board” referred to in the Notice was the “New South Wales Medical Board”, constituted as a body corporate by s 129(1) of the Medical Practice Act. That board no longer exists, and the relevant source of regulation in New South Wales is now the Health Practitioner Regulation National Law (NSW). Schedule 1 remains in the same form.

4. [6]

   Schedule 1 of the Medical Practice Act, to which reference is made in the Notice, provided a scheme for the registration of medical practitioners. As stated in the notice which is said to found Dr Quach’s challenge, it was issued for the purposes of Schedule 1, cl 11 of the Medical Practice Act.

5. [7]

   The particulars of the relief claimed are as follows:

   1. (1)

      Professor Horvarth (a medical practitioner), did not have the “necessary statutory authority” to investigate any matter in the Australian Capital Territory, when he ordered a Schedule 1 inquiry into an alleged complaint about Dr Quach from the Canberra Hospital, which is outside the jurisdiction of the Medical Practice Act.

   2. (2)

      The Canberra Hospital has stated that a complaint to the NSW Medical Board about Dr Quach does not exist.

   3. (3)

      Therefore, pursuant to the High Court ruling in Gedeon v NSW Crimes Commission [2008] HCA 43 at [43], “the exercise of the power or discretion [Schedule 1 inquiry] will have been made without the necessary statutory authority required of” Professor Horvarth, and the Schedule 1 inquiry ordered by Professor Horvarth is invalid.

   4. (4)

      This matter of Quach v Horvarth is private law, pursuant to the Federal Court ruling by Griffiths J, on 1 August 2019. [I shall refer to the portions of the transcript referred to here later in this judgment]

6. [8]

   Dr Quach seeks compensatory damage, interest and costs.

The relevant law

1. [9]

   The relevant sections of the Medical Practice Act are s 3-5, 12, 14-16, 56, 129 and 189. They read as follows:

2. [10]

   Schedule 1 cl 9(1) and cl 11 of the Medical Practice Act provide:

3. [11]

   While not in his affidavit dated 3 March 2021 (“MQAff 030321”), Dr Quach submitted that he has a medical degree, Bachelor of Medicine Bachelor of Surgery, from the University of Sydney. He also submitted that he was registered with the New South Wales Medical Board for a number of years as a medical student, and was not deregistered as a medical student. However he did not produce any evidence to substantiate these assertions. (T17.14-18)

4. [12]

   Dr Quach submitted that having obtained “recognised medical qualifications” under s 4(2)(a) of the Medical Practice Act, he was entitled to be registered as a medical practitioner under s 5 of the Medical Practice Act as at 19 January 1999. Therefore, Dr Quach correspondingly submitted that the question of his eligibility to be registered as a medical practitioner under the Medical Practice Act does not arise.

5. [13]

   Dr Quach submitted that Professor Horvarth ordered a Schedule 1 inquiry under the Medical Practice Act as at 19 January 1999, based on an allegation of a complaint from the Canberra Hospital. Dr Quach submitted that in February 2020 he discovered that there was no complaint from the Canberra Hospital to establish the “jurisdictional fact” required for the NSW Medical Board to order a Schedule 1 inquiry. See: Gedeon v NSW Crimes Commission HCA 43 at [43].

6. [14]

   In support of his submission, annexed to MQAff 030321 as Annexure B are copies of correspondence between Dr Quach and Canberra Hospital regarding whether there had been letter of complaint made against him. Ultimately on 6 February 2020, the Director of Medical Officer Support at the Employment and Training Unit of Canberra Health Services advised Dr Quach by email that:

7. [15]

   Finally Dr Quach submitted that this ‘prosecution’ of Professor Horvarth in the New South Wales Supreme Court in relation to his decision to order a Schedule 1 inquiry without a complaint from the Canberra Hospital, is a private prosecution.

8. [16]

   In that regard he relies on the Federal Court ruling by Griffiths J on 1 August 2019, which is Annexure C to MQAff 030321 and relevantly reads at lines 5-8:

9. [17]

   At the outset, Dr Quach relied upon s 91 of the Evidence Act 1995 (NSW) (“Evidence Act”) and s 56 of the Medical Practice Act. This was firstly to object to the contents of the 4 June 2021 affidavit of Nicholas Scott Regener, the defendant’s solicitor, and then also in his general submissions.

10. [18]

    Pursuant to s 91 of the Evidence Act, evidence of a decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. There is no evidence of a decision or finding of fact in either an Australian overseas proceeding that either party relied upon in this hearing.

11. [19]

    In oral submissions, Dr Quach said: “the notice of motion by the defendant Professor John Horvarth is endeavouring to prevent his own prosecution under the Medical Practice Act” (T3.1-3). Dr Quach referred to s 56 of the Medical Practice Act which reads:

12. [20]

    Dr Quach submitted that the defendant’s notice of motion was made under a subordinate rule, r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) and so s 56 of the Medical Practice Act takes precedence (T5.35-36). The Medical Practice Act (now repealed) does not govern proceedings in the Supreme Court. The Supreme Court Act 1970 (NSW) (“Supreme Court Act”), the Civil Procedure Act 1997 (NSW) (“Civil Procedure Act”) and the UCPR govern proceedings in this Court.

Summary judgment

1. [21]

   By notice of motion filed 4 June 2021, the defendant seeks that pursuant to UCPR 13.4 these proceedings are dismissed and that costs be payable as a gross sum forthwith.

2. [22]

   The defendant relies on UCPR 13.4 and 59.10. UCPR 13.4 relevantly reads:

3. [23]

   UCPR 13.4(1) provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are: if the proceedings are frivolous or vexatious, if no reasonable cause of action is disclosed, or if the proceedings are an abuse of the process of the Court.

4. [24]

   In General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125, Barwick CJ stated at 129:

5. [25]

   In O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71, the Court of Appeal applied the High Court decision of Spencer v Commonwealth (2010) 241 CLR 118 (“Spencer”). Although in Spencer the High Court was concerned with s 31A(2) of the Federal Court Act 1976 (Cth), the following principles are of general application:

6. [26]

   The defendant submitted that for many reasons, the proceedings are frivolous, disclose no reasonable cause of action and are an abuse of the process of the court: UCPR 13.4(1). In summary the reasons given by the defendant are:

7. [27]

   I shall deal with these issues in turn.

(a) The proceedings are out of time

1. [28]

   UCPR 59.10 reads:

2. [29]

   UCPR 59.10 applies to decisions made prior to the promulgation of Pt 59 of the UCPR: Randren House Pty Ltd v Water Administration Ministerial Corporation (No 4) [2019] NSWLEC 5 at [209]-[236]; cf Cudgegong Australia Pty Ltd v Transport for New South Wales [2018] NSWSC 929 at [75]-[93]. This is because UCPR 59.10 is a procedural provision, not a substantive provision: it does not abolish the entitlement to commence proceedings, it regulates it by permitting judicial review with leave. And, given the whole purpose of UCPR 59.10 was to encourage judicial review proceedings to be brought promptly, it would be most surprising if the intention of the drafter was that decisions made before the introduction of the rule were exempt from the leave condition: decisions made before the introduction of the rule were relatively more likely to be stale than ones made after it.

3. [30]

   The “substance of the rule is that challenges to the exercise of executive power should be brought reasonably promptly, or else be accompanied by an explanation as to why that did not occur”: Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783 (“Sinkovich”) at [13].

4. [31]

   On any view, the summons and the amended summons were not brought “reasonably promptly” after the “decision” under challenge.

5. [32]

   There is no application for an extension. Nor is there any “explanation” of the kind referred to in Sinkovich.

6. [33]

   UCPR 59.10(3) gives an indication of the kind of matters which an application for an extension would be expected to address ie:

7. [34]

   To the extent these factors are relevant, the following may be said.

8. [35]

   Even if there were an application for an extension of time, the discretion to extend should not be exercised.

9. [36]

   Dr Quach claims he has the right to commence a private prosecution against Professor Horvarth’s under the Medical Practice Act 1992, as at 19 January 1999. The Medical Practice Act , as at 19 January 1999, is not a civil jurisdiction and is not subject to any civil statute of limitation of six years. I shall return to the topic of a private prosecution later in this judgment.

Consideration

1. [37]

   While Dr Quach is correct that the statute of limitations does not apply to judicial review, UCPR 59.10 does apply. Dr Quach was required to file his statement of claim within 3 months of the “decision” being made. The “decision” he speaks of was made on 19 January 1999. Whether there was actually a decision will be dealt with under the next topic (b). Dr Quach has not sought an extension of time to commence his proceedings. I accept that he says that he did not know there was no complaint made against him until February 2020. However, aside from possibly UCPR 59(3)(a), Dr Quach has not addressed the requirements set out in UCPR 59(3).

(b) The alleged “decision” was not made

1. [38]

   The amended summons seeks to “[s]et aside the decision of Professor Horvath to order a Schedule 1 Inquiry, under the Medical Practice Act as at 19 January 1999”.

2. [39]

   It is apparent that Dr Quach’s case is that that decision was constituted or evidenced by the Notice as reproduced earlier in this judgment.

3. [40]

   However, Professor Horvath clearly did not make the alleged decision.

4. [41]

   The power to order an inquiry was vested in the Medical Board of New South Wales: Schedule 1, cl 9(1) of the Medical Practice Act. Dr Quach does not challenge a decision by the Board under cl 9(1), and the Board is not a party to these proceedings.

5. [42]

   The Notice evidences the exercise of a function by Professor Horvath under Schedule 1, cl 11 of the Medical Practice Act to fix the time and place of an inquiry. Even on the assumption favourable to Dr Quach that an exercise of power under cl 11 is a decision capable of challenge, Dr Quach does not challenge such a decision.

6. [43]

   Dr Quach does not address this submission other than to say that he has the right to commence a private prosecution against the defendant under the Act.

Consideration

1. [44]

   In s 3 of the Medical Practice Act under the heading ‘Dictionary’ the ‘Board’ is defined as the New South Wales Medical Board constituted by the Act and the ‘President’ is defined as the President of the Board. Schedule 1 cl 9 of the Medical Practice Act, prescribes that the Board may hold an inquiry in such cases as it considers appropriate into the eligibility of an applicant to be registered as a medical practitioner. It is the task of the Registrar to fix a time and place for the holding of the inquiry and the applicant is to be given at least 14 days notice in writing of the time and place of the inquiry. That was done and the notice was sent within the stipulated time frame.

2. [45]

   It was the NSW Medical Board that considered it appropriate to hold an inquiry into the eligibility of Dr Quach to be registered as a medical practitioner. The fact that the notice was signed by the President of the New South Wales Medical Board is of no consequence. It appears that the Registrar may well have been able to sign the notice. Professor Horvarth, the President did not make the decision in his personal capacity to hold the inquiry. Hence Professor Horvarth is not the correct defendant.

(c) The alleged error, if made, would not have warranted relief

1. [46]

   As best can be understood from the amended summons, the alleged error is that there was no “complaint” in existence. Let it be assumed favourably to Dr Quach that he can establish that there was no “complaint” in existence. That could not give rise to error by Professor Horvath.

2. [47]

   Nothing in the Medical Practice Act conditions the validity of the exercise of a function under Schedule 1, cl 11 of the Medical Practice Act on the existence of a “complaint”.

3. [48]

   Nor is there any basis for a contention that the non-existence of a complaint could yield some non-jurisdictional error of law on the face of the record. The existence of a complaint would seem to be a matter of fact, not law. And there is no evidence or suggestion that the “record” (if there was one) asserted that there was a “complaint”. The Notice does not assert that there was a “complaint”.

4. [49]

   Nor, for that matter, does anything in the Medical Practice Act condition the validity of the exercise of the Board’s power under Schedule 1, cl 9 of the Medical Practice Act on the existence of a “complaint”. The only express statutory precondition to the exercise of the Board’s power under cl 9(1) is that the Board “considers [it] appropriate” to hold an inquiry. The breadth of that language cuts overwhelmingly against any contention that it is a condition of the validity of an exercise of power under cl 9(1) that there be some complaint in existence.

5. [50]

   In answer, Dr Quach submitted that the notice was issued on 19 January 1999, some 22 years ago and was signed by Professor Horvarth, who at that time was the President of the Medical Board. In February 2020 Dr Quach says he discovered that no complaint had been made to the Medical Board and therefore he submitted that there was no authority for the defendant to issue the notice.

6. [51]

   Dr Quach relied upon Gedeon v NSW Crimes Commission [2008] HCA 43 at [43] (“Gedeon”), as authority for the principle that a ‘jurisdictional fact’ is a criterion the satisfaction of which enlivens the exercise of statutory power or discretion. In the absence of such a jurisdictional fact, the exercise of a power or discretion will have been made without the necessary statutory authority and will be invalid. Dr Quach submitted that accordingly the Schedule 1 inquiry ordered by Professor Horvarth is invalid as there was no complaint (jurisdictional fact) upon which the exercise of power (ordering the inquiry) was enlivened.

7. [52]

   Dr Quach also relied on Australian Vaccination Network Inc v Health Care Complaints Commission [2012] NSWSC 110 (“Australian Vaccination Network”). It refers to Gedeon at [42]. The short facts are set out in the judgment by Adamson J. They are:

8. [53]

   Part 2 of the Act deals with complaints. Section 7 in Division 1 of the Health Care Complaints Act 1993 (NSW) (“Health Care Complaints Act”) (this act superseded the Medical Practice Act) provides for the right to complain in the following terms:

9. [54]

   At [42] Adamson J stated:

10. [55]

    At [52] Her Honour stated:

11. [56]

    Her Honour declared that neither complaint was a complaint under the Health Care Complaints Act, the HCCC’s investigation into these complaints, the recommendation contained in the Investigation Report and the Public Warning issued by the HCCC in respect of the plaintiff were not within the jurisdiction of the HCCC. The application for judicial review failed.

12. [57]

    In relation to the question of whether there was an error warranting relief, Dr Quach also submitted that as he was working as an intern in the Australian Capital Territory (“ACT”), the NSW Medical Board had no jurisdiction to hold an inquiry.

Consideration

1. [58]

   Dr Quach’s refers to the expression ‘jurisdictional fact’, to describe the function that a complaint has in enlivening Professor Horvath’s power to order the Schedule 1 inquiry. In Australian Vaccination Network there was found to be a jurisdictional fact, namely the existence of a complaint that fell within s 7(1)(b).

2. [59]

   There is an important statutory difference in the Health Care Complaints Act and the Medical Practice Act (repealed), namely s 7 of the Health Care Complaints Act. Section 7 of the Health Care Complaints Act requires a complaint to be made. There was no such requirement for a complaint to be made in the Medical Practice Act. The existence of a complaint is not a jurisdictional fact for the purpose of exercising the power to order an inquiry.

3. [60]

   On the question of whether the NSW Medical Board had jurisdiction to order an inquiry, Dr Quach made a submission that having obtained recognised medical qualifications under s 4(2)(a) of the Medical Practice Act, he was entitled to be registered as a medical practitioner under s 5 of the Medical Practice Act.

4. [61]

   Dr Quach was seeking to be registered under a New South Wales Act which regulates the registration of medical practitioners practicing in New South Wales. The NSW Medical Board specifically has the power to hold an inquiry in such cases it considers appropriate into the eligibility of an applicant to be registered as a medical practitioner in New South Wales: Schedule 1 cl 9 of the Medical Practice Act. Therefore the NSW Medical Board did have jurisdiction to order the inquiry.

(d) There is no utility in granting relief

1. [62]

   Certiorari should not issue if it would serve no useful purpose: eg R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400 (“Ozone”); J J Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 at [83].

2. [63]

   The Notice fixed the time and place of a hearing in 1999. Either the meeting occurred at that time and place or it did not. If the meeting occurred at that time and place, there is no utility now in setting aside the Notice which fixed that time and place: the facts have occurred. If the meeting did not occur at that time and place, there is even less potential utility in setting aside the Notice.

3. [64]

   There is no utility in granting certiorari in respect of the Notice.

4. [65]

   The relief sought could not give rise to foreseeable consequences.

Consideration

1. [66]

   The decision to order an inquiry was made some 22 years ago. It was to fix a place and time for a hearing that may or may not have taken place at that time. I do not see any useful purpose for setting aside the decision to fix a time and place for a hearing over 20 years ago. As counsel for the defendant rightly asserts, the facts have already occurred and there is no utility in issuing of certiorari in relation to this decision.

(e) There has been unwarrantable delay

1. [67]

   Certiorari should not issued if there has been unwarrantable delay by the applicant: eg Ozone at 400.

2. [68]

   Historically, certiorari was available only if applied for within six months of the date of decision, with no power to extend time: Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 at [43] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ) (Callinan J agreeing at [80]). While there is no longer a strict time limit, it remains the case that an applicant for certiorari should act promptly.

3. [69]

   There has been unwarrantable delay by Dr Quach. The delay is 22 years. There is no explanation for the delay. There is no public interest in revisiting events occurring in the 1990s.

Consideration

1. [70]

   This topic has already been addressed under submission (a). There has been an extraordinary delay. I am reminded of what McHugh J said regarding delay in Brisbane South Regional Health Authority v Taylor [1996] HCA 25;186 CLR 541 at [551]:

2. [71]

   While there is no evidence of actual prejudice there is the presumed prejudice referred to in Barker v Wingo 407 US 514 (1972) (at [22]) caused by a delay of 22 years.

(f) There is no basis for a claim for “compensatory damages”

1. [72]

   Dr Quach claims “compensatory damages”.

2. [73]

   He does not allege a tort, but presumably his case is that there was an invalid decision and in consequence of that decision he suffered harm.

3. [74]

   This claim proceeds from a fundamentally unsound proposition.

4. [75]

   There is no general cause of action entitling recovery of compensation for harm suffered as a result of excess of public power: Kruger v The Commonwealth of Australia (1997) 190 CLR 1, 46-7 (Brennan CJ), 93 (Toohey J), 124-126 (Gaudron J), 146-148 Gummow J); Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37, 64, 69 (Latham CJ) Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 562; McClintock v The Commonwealth (1947) 75 CLR 1, 19 (Latham CJ); Kable v State of New South Wales (2012) 168 FLR 1 at [100]-[104] (Basten JA).

5. [76]

   In any event, any cause of action in tort would be well and truly time-barred under s 14(1) of the Limitation Act 1969 (NSW).

6. [77]

   Further, Professor Horvath has immunity under s 189(f) of the Medical Practice Act in respect of his conduct as President provided “the matter or thing was done or omitted to be done in good faith for the purposes of executing” the Medical Practice Act. There is (and could be) no contention that that immunity has been lost.

Consideration

1. [78]

   There is no general cause of action entitling recovery of compensation for harm suffered as a result of excess of public power. In any event Dr Quach has not established that there was an excess of public power, and Professor Horvath has immunity under the Medical Practice Act.

Particulars

1. [79]

   That leaves Dr Quach’s submissions that there has been non-compliance by Professor Horvarth with the Court’s order to provide particulars and as a result the defendant’s notice of motion should be dismissed.

2. [80]

   Dr Quach submitted that he complied with Order 2 of the Court on 10 June 2021 to request particulars for the Notice of Motion dated 4 June 2021. However Professor Horvarth has not complied with Order 3 to provide particulars. As the Notice of Motion is without particulars and without merit and should be dismissed with costs.

3. [81]

   The defendant submitted that he served written submissions that outlined his case. In judicial review the information provided is in substance the same as particulars.

Consideration

1. [82]

   While I accept the Registrar made orders for the defendant to supply particulars, this order is not usually made in judicial reviews. I accept the defendant served written submissions on Dr Quach which appraised of the case he had to meet. By the supply of submissions, the defendant has fulfilled this requirement.

Private criminal prosecution

1. [83]

   Dr Quach submitted that he has the right to commence a private prosecution against the defendant under the Medical Practice Act. As previously stated, this Act has been repealed and it no longer has any statutory force. In answer, Dr Quach may say that he has a right to commence a private prosecution under the Health Care Complaints Act. He does not.

2. [84]

   Section 14 of the Criminal Procedure Act 1986 (NSW) (“Criminal Procedure Act”) authorises that prosecution may be instituted by any person unless the right to institute the prosecution is confined by statute. Therefore, save for where the institution of proceedings is confined by statement, an application to a registrar of the Local Court to issue court attendance notices against a person for an offence can be made by a person other than a police officer or public officer.

3. [85]

   Section 49(1) of the Criminal Procedure Act reads:

4. [86]

   While it is possible to launch a private criminal prosecution, there has to be an alleged criminal offence. Here there is none.

Result

1. [87]

   The proceedings are grossly out of time, and there is no application for an extension of time to file the summons: cf UCPR 59.10. Nor is there evidence addressing any of the matters in UCPR 59.10(3).

2. [88]

   Further, the alleged “decision” was not made. The alleged error in the decision (if it exists) would not and could not have been an error warranting relief. 22 years have passed since Professor Horvath issued a notice stating the time and place of the hearing into Dr Quach’s eligibility to be registered. There is no utility in now setting aside a notice fixing the time and place of the hearing. These are overwhelming discretionary factors against the grant of relief.

3. [89]

   The defendant has set out the case that Dr Quach has had to meet. Dr Quach does not have the right to commence private criminal prosecution under the Medical Practice Act (now repealed) nor the Health Care Complaints Act.

4. [90]

   For these reasons, it is my view that the matters raised in Dr Quach’s amended summons are hopeless. In the exercise of my discretion, I decline to grant Dr Quach a further opportunity to replead his summons as the deficiencies in his summons cannot be overcome. The amended summons filed 27 May 2021 is dismissed.

Costs

1. [91]

   The defendant has indicated he wants to seek that costs be awarded as a gross sum payable forthwith.

2. [92]

   The timetable for submissions on costs is as follows:

   1. (1)

      The amended summons filed 27 May 2021 is dismissed.

   2. (2)

      The timetable for submissions on costs is as follows: