Federal Court of Australia Quach v Australian Health Practitioner Regulation Agency (Extension of Time) [2023] FCA 578 Appeal from: Application for leave to appeal: Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313 File number(s): ACD 29 of 2021 Judgment of: THAWLEY J Date of judgment: 2 June 2023 Catchwords: PRACTICE AND PROCEDURE – application for extension of time and leave to appeal from summary judgment – whether appeal has prospects of success – whether adequate explanation for delay – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) ss 24(1A), 24(1D)(b), 31A Health Practitioner Regulation National Law Act 2009 (NSW) s 149C Federal Court Rules 2011 (Cth) r 35.13 Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; 33 FCR 397 Dr Michael Van Thanh Quach v MLC Life Ltd (No 4) [2020] FCA 532 Finch v Heat Group (No 3) [2017] FCA 64 Fualau v Minister for Home Affairs [2020] FCAFC 11 Gallo v Dawson [1990] HCA 30; 93 ALR 479 Health Care Complaints Commission v Quach [2015] NSWCATOD 2 Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32 Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; 3 FCR 344 Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 Parker v The Queen [2002] FCAFC 133 Pfizer Ireland Pharmaceuticals v Samsung Bioepis Au Pty Ltd [2017] FCA 573 Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313 Quach v Butt [2016] ACTSC 153 Quach v Butt [2017] ACTCA 4 Quach v Health Care Complaints Commission [2015] NSWCA 187 Quach v Health Care Complaints Commission [2016] NSWCA 49 Quach v Health Care Complaints Commission (No 2) [2015] NSWCA 311 Quach v Horvasrth [2021] NSWSC 1401 Quach v MLC Life Ltd (No 1) [2019] FCA 1194 Quach v MLC Life Ltd (No 2) [2019] FCA 1322 Quach v MLC Life Ltd (No 5) [2020] FCA 1134 Quach v MLC Ltd (No 3) [2019] FCA 2066 Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63 Quach v New South Wales Civil and Administrative Tribunal (No 2) [2017] NSWCA 182 Quach v New South Wales Civil and Administrative Tribunal [2019] NSWCA 49 Quach v New South Wales Civil and Administrative Tribunal [2019] NSWCA 200 Quach v New South Wales Civil and Administrative Tribunal [2020] NSWCA 214 Quach v New South Wales Civil and Administrative Tribunal and Anor; Quach v Health Care Complaints Commission [2015] HCASL 131 Quach v New South Wales Health Care Complaints Commission (No 3) [2016] NSWCA 284 Quach v New South Wales Health Care Complaints Commission (No 4) [2016] NSWCA 285 Quach v New South Wales Health Care Complaints Commission (No 5) [2016] NSWCA 366 Quach v New South Wales Health Care Complaints Commission (No 6) [2017] NSWCA 183 Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10 Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267 Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2018] NSWCA 175 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 [2019] FCA 2041 Quach v Samsung Electronics Australia Pty Ltd ACN 002 915 648 (Civil Dispute) [2021] ACAT 36 Quach v Telstra Corporation Limited ACN 051 775 556 (Appeal) [2021] ACAT 111 Re JJT; Ex parte Victoria Legal Aid [1998] HCA 44; 195 CLR 184 Division: General Division Registry: Australian Capital Territory National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 31 Date of hearing: 1 June 2023 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Ms E Latiff Solicitor for the Respondent: MinterEllison ORDERS ACD 29 of 2021 BETWEEN: DR MICHAEL VAN THANH QUACH Applicant AND: AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY Respondent order made by: THAWLEY J DATE OF ORDER: 2 June 2023 THE COURT ORDERS THAT: 1. The application for extension of time and leave to appeal be dismissed. 2. The applicant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THAWLEY J: INTRODUCTION 1 Michael Van Thanh Quach applies for an extension of time and leave to appeal from orders made on 31 March 2021 summarily dismissing his claim against the Australian Health Practitioner Regulation Agency (AHPRA): Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313. 2 In the proceedings before the primary judge, Dr Quach claimed that an inspector from AHPRA had made false representations and that AHPRA had made an invalid decision to cancel his registration as a medical practitioner. The relevant background events are fully set out in the reasons of the primary judge. It is sufficient for present purposes to note the following: In 2015, the NSW Civil and Administrative Tribunal (NCAT) cancelled Dr Quach's registration as a medical practitioner, pursuant to s 149C of the Health Practitioner Regulation National Law Act 2009 (NSW), after finding complaints against Dr Quach were substantiated: Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32. AHPRA was not a party to the NCAT proceeding. Five years later, in 2020, the Health Care Complaints Commission informed AHPRA that it was concerned Dr Quach was practising as a medical practitioner whilst unregistered. An officer of AHPRA was tasked with investigating the matter. Ultimately, with Dr Quach's cooperation, the investigation was completed and no further action was taken. 3 On 14 September 2020, Dr Quach filed an originating application and statement of claim in this Court. The statement of claim pleaded: 1. Australian Health Practitioner Regulation Authority, in Shameema Barekzai, has made false representation in relation to a Commonwealth body, pursuant to Section 150.1 of the Criminal Code 1995 (Cth). 2. The Australian Health Practitioner Regulatory Authority, as a "national body," acted without valid (Commonwealth) statutory authority to effectively cancel the Plaintiff's registration as a medical practitioner on 24 April 2015, in every state and territory jurisdiction of Health Practitioner Regulation National Law; (NSW), (NT), (ACT), (WA), (QLD), (Tasmania), (South Australia), (Victoria). 3. The Plaintiff claims: I. Compensatory damages II. Interests III. Costs. 4 On 26 November 2020, AHPRA filed an interlocutory application seeking summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) on the basis that Dr Quach's claim had no reasonable prospect of success. Relevantly, s 31A of the FCA Act includes: (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. … (5) This section does not apply to criminal proceedings. 5 The application for summary dismissal was granted by the primary judge on 31 March 2021. 6 Dr Quach requires leave to appeal from the orders summarily dismissing his claim: ss 24(1A) and 24(1D)(b) FCA Act. An application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the order was made: r 35.13 of the Federal Court Rules 2011 (Cth). Dr Quach filed an application on 5 May 2021, approximately 21 days out of time. 7 Dr Quach relies on two affidavits, one filed on 5 May 2021 and the other on 22 November 2022. Dr Quach relied on written submissions in chief and in reply to the written submissions relied upon by AHPRA. Both parties addressed orally at the hearing of Dr Quach's application. 8 Dr Quach also sought to tender his email of 27 October 2021 to the Victorian Minister for Health and a response to that email from the Victorian Department of Health dated 17 December 2021. AHPRA objected to the tender of the email and letter on the basis that it was fresh evidence and on the grounds of relevance. This issue is dealt with below. CONSIDERATION 9 Dr Quach relied on two proposed grounds of appeal in support of his application for an extension of time and leave to appeal (errors and formatting in original): 1. I was not afforded a fair hearing. 2. The decision of Abraham J is invalid because it is inconsistent with the Section 31A (5) of Federal Court Act 1976 (Cth) Summary judgement, (5) This section does not apply to criminal proceedings. I was not afforded a fair hearing. 10 Rule 35.13 of the Rules provides a 14 day time limit for filing an application for leave to appeal. Where an application for leave to appeal has not been filed within time, the applicant may apply for an extension of time to seek leave to appeal in accordance with r 35.14, which includes: 35.14 Extension of time to seek leave to appeal (1) A person who wants to apply for an extension of time to seek leave to appeal must file an application, in accordance with Form 118. (2) The application may be made during or after the period mentioned in rule 35.13. (3) The application must be accompanied by the following: (a) the judgment or order from which leave to appeal is sought; (b) the reasons for the judgment or order, if published; (c) an affidavit stating: (i) briefly but specifically, the facts on which the application relies; and (ii) why the application for leave to appeal was not filed within time; and (d) a draft notice of appeal that complies with rules 36.01(1) and (2); (e) a statement by the applicant of whether the applicant wants to have the application considered without oral argument. 11 The overarching consideration when determining whether to grant an extension of time is whether injustice may arise by a strict application of the time limit: Gallo v Dawson [1990] HCA 30; 93 ALR 479 at 480; Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 at 30; Finch v Heat Group (No 3) [2017] FCA 64 at [33]. 12 Ultimately, it is the terms of the particular provision permitting an extension of time which is determinative of the considerations that are relevant and appropriate. The Court regularly considers matters such as: the length of the delay; whether an acceptable explanation for the whole of the delay has been provided; in a context such as the present, the likelihood of leave to appeal being granted; and the consequences of granting or refusing the extension, including any prejudice to the respondent: Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; 3 FCR 344 at 348-9; Parker v The Queen [2002] FCAFC 133 at [6]; Pfizer Ireland Pharmaceuticals v Samsung Bioepis Au Pty Ltd [2017] FCA 573 at [3]-[4]; Fualau v Minister for Home Affairs [2020] FCAFC 11 at [6]. 13 The question of whether leave to appeal would be granted requires consideration of whether: (1) the decision giving rise to the orders is attended with sufficient doubt to warrant it being considered by a Full Court; and (2) substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; 33 FCR 397 at 398. These two considerations are inter-related. 14 Whilst I have considered all the various matters put in the written and oral submissions by the parties, the two matters of most significance in the present circumstances are: (1) the prospects of success – namely, the prospect that leave to appeal would be granted which in turn depends on whether: (a) the orders appealed from are attended with sufficient doubt; and (b) substantial injustice would result if leave were refused; (2) whether there is an adequate explanation for delay. Prospects of success 15 The first ground of appeal was not clarified by any particulars or precise identification of that which was said to have resulted in the denial of a fair hearing. Dr Quach did not assert that he was denied procedural fairness in the sense of being denied a proper hearing and there is no evidentiary basis before the Court to reach such a conclusion. 16 Dr Quach addressed the first proposed ground of appeal in his written submissions under the heading "Denial of Natural Justice". This included: 22. Notwithstanding Section 31A of the Federal Court Act 1976 (Cth) states that, "This section does not apply to criminal proceedings," an application for summary judgment under this section has been allowed in the Criminal Code Act 1995 (Cth). In my respectful submission, this is a miscarriage of justice. 17 In substance, this argument is the same as that constituting the second ground of appeal to which it is accordingly appropriate now to turn. 18 By his proposed second ground of appeal, Dr Quach contended that the primary judge did not have jurisdiction to dismiss his claim summarily under s 31A of the FCA Act because the proceeding was a criminal proceeding to which s 31A(5) applied. 19 The primary judge addressed the application of s 31A(5) in her reasons at [36], which included: … The applicant has commenced these proceeding by filing an originating application and statement of claim, which is susceptible to an application for summary dismissal. As is apparent from s 31A of the FCA Act "criminal proceedings" are excluded from the scope of an application for summary judgment. However, these proceedings do not fall within that concept, as defined. That term is defined in sch 1 of the Criminal Rules as meaning any of the following proceedings: (a) criminal appeal proceedings, (b) indictable primary proceedings, and (c) summary criminal proceedings. Relevantly, "indictable primary proceedings" is defined in s 23AB of the FCA Act: see Note 2 to r 1.11 of the Criminal Rules. These proceeding brought by the applicant do not fall within the scope of s 23AB and plainly nor does it fall within the scope of "criminal appeal proceedings" or "summary criminal proceedings". Accordingly, these proceedings are not criminal proceedings within the definition of the FCA Act. It follows that there is no proper basis for the applicant's assertion that s 31A of the FCA Act and r 26.01 of the FCR does not apply. 20 These conclusions are plainly correct. Dr Quach's proceeding were not "criminal proceedings" within the meaning of s 31A(5) of the FCA Act. By his written submissions, Dr Quach submitted that he commenced the proceedings in the way he did because his attempt to commence criminal proceedings by way of summons was not successful. This fact cannot transform what is clearly not a criminal proceeding within the meaning of s 31A(5) into a criminal proceeding. 21 In his oral submissions, Dr Quach contended that AHPRA was not a Commonwealth government body. He sought to rely upon the letter from the Victorian Department of Health to establish this proposition. The letter does not establish this proposition. In any event, the question whether or not AHPRA is a Commonwealth government body is irrelevant to either proposed ground of appeal. Accordingly, the tender is rejected. 22 The question about AHPRA's status is irrelevant to the present application because: (a) whatever the correct characterisation of AHPRA's status, the proceedings which Dr Quach brought against AHPRA are not criminal proceedings with the result that s 31A applies; and (b) AHPRA did not cancel or purport to cancel Dr Quach's registration as a medical practitioner in 2015. As mentioned earlier, that registration was cancelled by NCAT on 10 April 2015, after having found various complaints regarding Dr Quach had been substantiated. NCAT made orders pursuant to s 149C of the National Law, including that Dr Quach's registration be cancelled. 23 Dr Quach has not demonstrated any arguable legal error in the primary judge's reasoning. Her Honour's reasons are not attended by any doubt. No substantial injustice could result if leave to appeal were refused. It follows that, if an extension of time were granted in which to seek leave to appeal, the application for leave to appeal would be refused. Delay and explanation for delay 24 Dr Quach filed his application for an extension of time and leave to appeal approximately three weeks out of time. AHPRA opposes the extension of time being granted. 25 Dr Quach's explanation for the delay is based upon his status as a self-represented litigant and his assertion that he was unaware of the time limit. His written submissions included: 19. As a self-represented litigant, I was not aware a summary judgment has a 14 day period for application for leave to appeal. I had always believed that all final judgments were subject a 28 days period for appeal. 26 In his first affidavit, Dr Quach deposed that he had made two attempts to lodge a notice of appeal, one on 25 April 2021 and then on 28 April 2021. Whilst it might be open to infer from this that Dr Quach erroneously thought the appeal period was 28 days, it is evident that he has successfully navigated the 14 day appeal period in other appeals from interlocutory decisions in this Court: see Quach v MLC Ltd (No 3) [2019] FCA 2066; Quach v RU [2019] FCA 2041. This does not necessarily demonstrate that he knew the time limit was 14 days, but it is relevant that he has experience as a self-represented litigant. Indeed, Dr Quach is quite experienced in that regard – see: Health Care Complaints Commission v Quach [2015] NSWCATOD 2; Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63; Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32; Quach v Health Care Complaints Commission [2015] NSWCA 187; Quach v New South Wales Civil and Administrative Tribunal and Anor; Quach v Health Care Complaints Commission [2015] HCASL 131; Quach v Health Care Complaints Commission (No 2) [2015] NSWCA 311; Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10; Quach v Health Care Complaints Commission [2016] NSWCA 49; Quach v Butt [2016] ACTSC 153; Quach v New South Wales Health Care Complaints Commission (No 3) [2016] NSWCA 284; Quach v New South Wales Health Care Complaints Commission (No 4) [2016] NSWCA 285; Quach v New South Wales Health Care Complaints Commission (No 5) [2016] NSWCA 366; Quach v Butt [2017] ACTCA 4; Quach v New South Wales Civil and Administrative Tribunal (No 2) [2017] NSWCA 182; Quach v New South Wales Health Care Complaints Commission (No 6) [2017] NSWCA 183; Quach v RU (No 1) [2017] ACTSC 233; Quach v RU (No 2) [2017] ACTSC 234; Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267; Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2018] NSWCA 175; Quach v New South Wales Civil and Administrative Tribunal [2019] NSWCA 49; Quach v MLC Life Ltd (No 1) [2019] FCA 1194; Quach v New South Wales Civil and Administrative Tribunal [2019] NSWCA 200; Quach v MLC Life Ltd (No 2) [2019] FCA 1322; Quach v RU [2019] FCA 2041; Quach v MLC Ltd (No 3) [2019] FCA 2066; Dr Michael Van Thanh Quach v MLC Life Ltd (No 4) [2020] FCA 532; Quach v RU (No 2) [2020] FCA 957; Quach v MLC Life Ltd (No 5) [2020] FCA 1134; Quach v New South Wales Civil and Administrative Tribunal [2020] NSWCA 214; Quach v Telstra Corporation Limited ACN 051 775 556 (Appeal) [2021] ACAT 111; Quach v Horvarth [2021] NSWSC 1401; Quach v Samsung Electronics Australia Pty Ltd ACN 002 915 648 (Civil Dispute) [2021] ACAT 36. 27 Whilst I have some doubt about Dr Quach's explanation for delay, I proceed on the basis that he has provided an adequate explanation for his delay. I proceed on the basis that he genuinely thought that he had 28 days within which to bring his application. I accept that the delay in commencing the application was not particularly lengthy. I also accept that there is no relevant prejudice to AHPRA. 28 As noted earlier, the real difficulty is that there are no real prospects of leave to appeal being granted or of an appeal being allowed. The appropriate exercise of discretion in light of these matters is to refuse the application for an extension of time and leave to appeal. The granting of the application would be futile and result in costs being incurred in relation to a case which was bound to fail. CONCLUSION 29 The application for an extension of time and leave to appeal is dismissed. 30 AHPRA applied for costs. Dr Quach submitted that costs should not be ordered against him on the basis that there was no statutory source of power because AHPRA was not a Commonwealth body, citing Re JJT; Ex parte Victoria Legal Aid [1998] HCA 44; 195 CLR 184. 31 The Court has power to order costs under s 43 of the FCA Act. Dr Quach brought proceedings against AHPRA thereby recognising it to be a legal entity capable of being sued. AHPRA is established by s 23(1) of the National Law. There is no reason to depart from the ordinary rule that costs follow the event. Dr Quach's application was unsuccessful and he should be ordered to pay AHPRA's costs of and incidental to his application for an extension of time and leave to appeal. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thawley. Associate: Dated: 2 June 2023