Quach v New South Wales Civil and Administrative Tribunal

1. [1]

   GLEESON JA: Application is made by Mr Michael Van Thanh Quach by notice of motion filed 10 February 2020 for the following relief:

   1. (1)

      to set aside a vexatious proceedings order made by the Court on 20 October 2017 in proceedings 2015/158685 (par 2); [1]

   2. (2)

      that the second respondent, the Health Care Complaints Commission (HCCC), is guilty of contempt by taking steps to enforce a costs order made by the NSW Civil and Administrative Tribunal (the Tribunal) on 21 April 2015 and that an arrest warrant be issued for the Chief Executive Officer of the HCCC (pars 3 and 7);

   3. (3)

      that each of the members of the Court dealing with the present application recuse themselves on the ground of apprehended bias having regard to their participation in one or more earlier decisions of the Court dismissing previous applications by Mr Quach to set aside the vexatious proceedings order (par 4); and

   4. (4)

      to stay any costs assessments or orders, including the costs order made by the Tribunal on 21 April 2015 in the disciplinary proceedings in the Tribunal (par 5). [2]

2. [2]

   There is no par 1 of the notice of motion. Par 8 of the notice of motion contains the stated “grounds” on which relief is sought.

3. [3]

   As to the relief sought in (3) above, by judgment delivered on 9 September 2020, each of the members of the Court declined the recusal application. [3]

4. [4]

   Turning to the balance of Mr Quach’s application, in response to directions made by the Registrar Mr Quach and the HCCC have filed written submissions on the issue of whether pars 3, 5 and 7 of the notice of motion should be struck out, either on the ground that leave to institute proceedings to seek such relief has not been sought and obtained under s 14 of the Vexatious Proceedings Act 2008 (NSW), or on the grounds in Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 13.4(1)(a) and (c) that the relief sought is frivolous and vexatious and an abuse of process.

5. [5]

   Having considered the submissions of Mr Quach (of one page) and the HCCC and Mr Quach’s reply submissions (of four pages), I am satisfied that the application may be disposed of without an oral hearing. Contrary to the submissions of Mr Quach, nothing in Annetts v McCann [4] supports his contention that he is entitled to an oral hearing. Mr Quach has been afforded procedural fairness by means of the opportunity to file written submissions, which he has taken up.

Par 2: application to set aside vexatious proceedings order

1. [6]

   The vexatious proceedings order was made by the Court on 20 October 2017 under s 8(7)(a) and (b) of the Vexatious Proceedings Act. Mr Quach has been unsuccessful in three earlier applications to set aside that order: on 9 August 2018 [5] , on 20 March 2019 [6] and on 15 August 2019 [7] . On the last occasion, the Court declined to consider Mr Quach’s application on the ground that the application was not materially different to two earlier unsuccessful applications by Mr Quach for the same relief. That course was available to the Court under s 9 of the Vexatious Proceedings Act.

2. [7]

   On the present application, Mr Quach advanced two new contentions. First, he submitted that a vexatious proceeding order cannot be made in interlocutory proceedings, relying upon the decision of the Full Federal Court in Zetta Jet Pte Ltd v The Ship “Dragon Pearl” (No 2) [2018] FCAFC 132; (2018) 265 FCR 290 at [14] (Allsop CJ, Moschinsky and Colvin JJ). There is no such limitation in the Vexatious Proceedings Act, s 8. Nor is the Dragon Pearl authority for the proposition contended for by Mr Quach.

3. [8]

   The Dragon Pearl involved an application for leave to appeal against a decision summarily dismissing in rem proceedings against a vessel. Leave to appeal was granted and orders made varying the orders of the primary judge to allow the applicant to pursue an application for urgent provisional relief based upon a foreshadowed claim to orders under s 588FF of the Corporations Act 2001 (Cth). The remarks in the Dragon Pearl at [14], concerning a foreshadowed argument on the proposed appeal in that matter based on the principles of res judicata, do not have any relevance to the present application by Mr Quach to set aside the vexatious proceedings order made by this Court.

4. [9]

   Second, Mr Quach appeared to raise a constitutional question. He submitted that the vexatious proceedings order is invalid based on s 109 of the Constitution. No argument was advanced in support of this constitutional point; in particular, Mr Quach failed to identify any law of the Commonwealth in respect of which it is said that the Vexatious Proceedings Act or any provision thereof is inconsistent. Nor is there evidence that Mr Quach has given notice pursuant to s 78B of the Judiciary Act 1903 (Cth) to the Commonwealth and State Attorneys-General.

5. [10]

   Mr Quach indicated in his reply submissions filed 11 November 2020 that s 78B notices would be served on Commonwealth and State Attorneys-General by 2 December 2020. However, it is not necessary for this Court to await the outcome of that foreshadowed step by Mr Quach. The mere assertion of invalidity of the Vexatious Proceedings Act by reason of s 109 of the Constitution does not lead to the characterisation of this application as involving “a matter arising under the Constitution or involving its interpretation” for the purposes of s 78B of the Judiciary Act. As French J (as his Honour then was) said in Deputy Commissioner of Taxation v Warrick (No 2) [2004] FCA 918 at [103]:

6. [11]

   Similarly, in the present case, no arguable s 109 inconsistency and no basis for staying this application pursuant to s 78B of the Judiciary Act was disclosed by reason of the mere reference in Mr Quach’s submissions to the Constitution [8] .

7. [12]

   This fourth application by Mr Quach to set aside the vexatious proceedings order should be dismissed as an abuse of process.

Failure to obtain leave under s 14 of the Vexatious Proceedings Act

1. [13]

   There is a fundamental difficulty with the relief sought in pars 3, 5, 6 and 7 of the motion. The relief is caught by the terms of the vexatious proceedings order made on 20 October 2017 because the contempt application, the stay application and par 6 of the motion (whatever is intended by it) all relate to proceedings before the Tribunal relating to the costs order made on 21 April 2015 or proceedings in this Court (2015/158685) in which the HCCC gave an undertaking to the Court, which Mr Quach alleges the HCCC has breached. Mr Quach has not sought leave under s 14 of the Vexatious Proceedings Act to institute proceedings seeking this relief.

2. [14]

   For this reason alone, these pars of the motion should be summarily dismissed on the ground that the motion is an abuse of process.

3. [15]

   Nonetheless, I will address why the relief sought is also misconceived.

Pars 3 and 7: allegation of contempt against HCCC

1. [16]

   The contention that the HCCC is guilty of contempt is based on the allegation that the HCCC breached an undertaking which it gave to this Court on 29 June 2015 not to enforce costs orders made by the Tribunal on 21 April 2015 (the enforcement undertaking) before the special leave applications by Mr Quach were determined by the High Court.

2. [17]

   In 2017, this Court summarily dismissed Mr Quach’s motion filed 14 March 2017 seeking similar relief and orders against the HCCC and/or Mr Paul Taylor [9] . It is convenient to reproduce [24]-[31] of my reasons given on 25 July 2017:

3. [18]

   In addition to the procedural deficiency that the contempt application does not include a statement of charge as required by Supreme Court Rules 1970 (NSW), r 55.7, there are no new grounds or evidence relied upon by Mr Quach on this motion. There is no evidence that the HCCC took any step to enforce the costs order made by the Tribunal on 21 April 2015 before the special leave applications by Mr Quach were determined by the High Court. On the contrary, the High Court dismissed the special leave applications by Mr Quach on 13 August 2015, [10] almost 4 years before the HCCC’s application for an assessment of costs was filed on 12 December 2019.

4. [19]

   It follows that the premise of the contempt allegation, that HCCC breached the enforcement undertaking, is factually misconceived.

Par 5: Stay application

1. [20]

   The basis upon which Mr Quach seeks a stay of the costs order made by the Tribunal on 21 April 2015 is that enforcement of the costs order is a contempt of court by the HCCC. For the reasons indicated that is not the case. No basis for the stay has been identified by Mr Quach.

Par 6: Other matters

1. [21]

   Paragraph 6 of the notice of motion stated:

2. [22]

   In par 8 of the motion under the heading “Grounds for Notice of Motion Order Sought”, Mr Quach contended that:

3. [23]

   To the extent that this contention should be taken to be a reference to the Legal Profession Uniform Law Application Act 2014 (NSW), it is meaningless. Pt 2 of that Act is titled ‘Application of Uniform Law’ and makes provision for the application of various statutes to the Legal Profession Uniform Law (NSW), as well as dealing with miscellaneous trust accounting and other matters. None of those matters relate to the “application” of the Health Care Complaints Commission Act 1993 (NSW) as contended. No written submissions were advanced by Mr Quach in support of par 6 of the notice of motion. There is no basis for any relief based on par 6 of the motion.

Conclusion and Orders

1. [24]

   There is no reason why costs should not follow the event of the motion: UCPR, r 42.1.

2. [25]

   Accordingly, I propose the following orders:

   1. (1)

      The notice of motion filed 10 February 2020 be dismissed as an abuse of process.

   2. (2)

      The applicant (Mr Quach) to pay the second respondent’s (HCCC) costs of the motion.

3. [26]

   LEEMING JA: I agree with Gleeson JA.

4. [27]

   McCALLUM JA: I agree with Gleeson JA.