Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Quach v New South Wales Civil and Administrative Tribunal [2020] NSWCA 214 Hearing dates: 4 September 2020 (on the papers) Decision date: 09 September 2020 Before: Gleeson JA; Leeming JA; McCallum JA Decision: Application for recusal declined. Catchwords: JUDGMENTS AND ORDERS – Court of Appeal – bias – apprehended bias on the ground of prejudgment – where members of the Court sat on previous unsuccessful applications by the applicant Cases Cited: British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 CNY 17 v Minister for Immigration and Border Protection [2019] HCA 50; 94 ALJR 140 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; [1986] HCA 39 Category: Principal judgment Parties: Michael Quach (Applicant) NSW Civil and Administrative Tribunal (First Respondent) NSW Health Care Complaints Commission (Second Respondent) Representation: Counsel: Self-represented (Applicant) Solicitors: Self-represented (Applicant) File Number(s): 2015/158685 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. THE COURT: Application is made by Mr Michael Van Thanh Quach by notice of motion filed 10 February 2020 for a variety of relief, including: (1) to set aside a vexatious proceedings order made by the Court on 20 October 2017 in proceedings 2015/158685; [1] (2) for an order 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), which conduct is said to be in breach of an undertaking given by the HCCC to this Court on 29 June 2015; and (3) to stay any costs assessments or orders, including the costs order made by the Tribunal on 21 April 2015 in the disciplinary proceedings below. [2] 2. Ground 4 of the notice of motion seeks an order that the present members of the Court 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. [3] 3. Questions of bias should be addressed first, as the High Court explained in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd. [4] That is because the necessary result, if bias is established, is a retrial. [5] Apprehended bias 1. The test for apprehension of bias is objective. It does not require an assessment of the state of mind of the judge in question, as is necessary on an inquiry about actual bias. [6] The test for recusal is whether a fair-minded lay person, with knowledge of the matters relied upon by the applicant, might reasonably consider that the respective members of the Court might not carry out their judicial functions as a member of the Court with an impartial and unprejudiced mind. [7] 2. We are satisfied that such a person would not reach that conclusion based on the complaint made by Mr Quach that we have sat on other matters involving unsuccessful applications by Mr Quach. In none of these matters have we made findings adverse to Mr Quach's credibility. Our involvement in them does not demonstrate an inability to deal fairly, according to law, with any additional application made by Mr Quach. 3. Mr Quach was unable to identify any logical connection between the dismissal of his previous applications to set aside the vexatious proceedings order and the issues that need to be determined on the present application, such that a fair-minded lay person might reasonably apprehend that the members of the Court might not bring an impartial and unprejudiced mind to the resolution of the questions for decision on the notice of motion. [8] 4. We are mindful that it is our duty to determine matters which come before us as members of the Court and also that it is our duty not to withdraw unless there are reasons which require us to do so. As Mason J said in Re JRL; Ex parte CJL [9] at 352: Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. 1. For these reasons, we decline the recusal application. ********** Endnotes 1. Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267. 2. Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32. 3. Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2018] NSWCA 175 (Gleeson JA, Payne and White JJA agreeing); Quach v New South Wales Civil and Administrative Tribunal [2019] NSWCA 49 (Gleeson JA, Leeming and McCallum JJA agreeing); Quach v NSW Civil and Administrative Tribunal [2019] NSWCA 200 (Gleeson JA, Leeming and McCallum JJA agreeing). 4. (2006) 229 CLR 577; [2006] HCA 55 (Concrete). 5. Concrete at [2]-[3] (Gummow ACJ), [117] (Kirby and Crennan JJ), [172] (Callinan J). 6. Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 (Michael Wilson) at [33]. 7. Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]-[13]; Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]; Michael Wilson at [31]; CNY 17 v Minister for Immigration and Border Protection [2019] HCA 50; 94 ALJR 140 at [17]-[18] (Kiefel CJ and Gageler J), [56]-[57] (Nettle and Gordon JJ), [132] (Edelman J). 8. Ebner v Official Trustee in Bankruptcy at [8]; Michael Wilson at [32]-[33]; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [139] (Heydon, Kiefel and Bell JJ). 9. (1986) 161 CLR 342; [1986] HCA 39. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 September 2020