Quach v Civil and Administrative Tribunal of New South Wales [2022] NSWSC 1091

Supreme Court New South Wales

Medium Neutral Citation: Quach v Civil and Administrative Tribunal of New South Wales [2022] NSWSC 1091 Hearing dates: On the papers Date of orders: 16 August 2022 Decision date: 16 August 2022 Jurisdiction: Common Law Before: Wright J Decision: (1) An order declaring that the proceedings commenced by the filing of the summons on 16 December 2021 (the Proceedings) are proceedings to which s 13(2) and (3) of the Vexatious Proceedings Act 2008 (NSW) apply. (2) An order declaring that the Proceedings are taken to have been dismissed on 14 January 2022 by operation of s 13(3) of the Vexatious Proceedings Act 2008 (NSW). (3) An order that the plaintiff is to pay the first and second defendants' costs of the Proceedings. Catchwords: APPEAL – Procedure – Vexatious litigant – Purported appeal to the Supreme Court from decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal dismissing appeal from a profession decision of the Occupational Division – No right of appeal to Appeal Panel of NCAT from a profession decision of the Occupational Division – In dismissing appeal the Appeal Panel did not have to be constituted in accordance with s 165B of the Health Practitioners Regulation National Law (NSW). APPEAL – Purported appeal to the Supreme Court from decision of Appeal Panel dismissing an appeal from a profession decision of the Occupational Division of NCAT – Whether order of the Court of Appeal under the Vexatious Proceedings Act 2008 (NSW) prohibiting plaintiff instituting proceedings stayed because of institution of appeal against the dismissal of an appeal to the Appeal Panel from a profession decision of the Occupational Division of NCAT– No stay. CIVIL PROCEDURE – Vexatious litigant – Institution of proceedings without leave – Proceedings stayed from institution and taken to be dismissed after 28 days if not ordered to be dismissed earlier by operation of s 13 of the Vexatious Proceedings Act 2008 (NSW) - Declaratory orders made formally recording dismissal under the statute. CIVIL PROCEDURE – Recusal for Bias – Apprehended bias – Mere fact of being President of NCAT at the time of the decisions appealed against does not provide a basis to conclude that a fair-minded lay observer, being aware of ordinary judicial practice, might reasonably apprehend that a former President might not bring an impartial mind to the resolution of an appeal from those decisions. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 17, 55, 80, 82, 83, 84, Sch 5 cl 29, Sch 6 cl 14 Health Practitioner Regulation National Law (NSW), ss 165, 165B Judiciary Act 1903 (Cth), s 78B Uniform Civil Procedure Rules 2005 (NSW), rr 50.4, 59.4 Vexatious Proceedings Act 2008 (NSW), ss 8, 13, 14, 16 Cases Cited: Charisteas v Charisteas [2021] HCA 29; 95 ALJR 824 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Health Care Complaints Commission v Quach [2015] NSWCATOD 2 Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32 Quach v Marks (No 2) [2021] FCA 922 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 295 Quach v New South Wales Civil and Administrative Tribunal (No 2) [2017] NSWCA 182 Quach v New South Wales Health Care and Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267 Quach v New South Wales Health Care Complaints Commission (No 6) [2017] NSWCA 183 Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2018] NSWCA 175 Category: Principal judgment Parties: Michael Van Thanh Quach (Plaintiff) Civil and Administrative Tribunal of New South Wales (First Defendant) Health Care Complaints Commission (Second Defendant) Representation: Solicitors: Crown Solicitor for NSW (First Defendant) Nicole Lawless (Second Defendant) File Number(s): 2021/00357236-1 Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Appeal Panel Date of Decision: 19 November 2019 Before: Principal Member A Suthers File Number(s): 2021/00313229