Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Quach v New South Wales Civil and Administrative Tribunal (No 2) [2022] NSWCA 177 Hearing dates: 8 September 2022 (on the papers) Decision date: 09 September 2022 Before: Meagher JA at [1]; Gleeson JA at [2]; Mitchelmore JA at [26] Decision: (1) The applicant's notice of motion filed 5 April 2022 be dismissed as an abuse of process. (2) The applicant to pay the second respondent's costs of the motion. Catchwords: CIVIL PROCEDURE – parties – vexatious litigants – fifth application to set aside vexatious proceedings order – application dismissed CONSTITUTIONAL LAW – Judiciary Act 1903 (Cth) s 78B – whether proceedings involve a matter arising under the Constitution or involving its interpretation – where mere assertion of invalidity of Vexatious Proceedings Act 2008 (NSW) by reason of s 109 of the Constitution – whether frivolous or unarguable contention – no obligation to stay proceedings until s 78B notices given ADMINISTRATIVE LAW – Civil and Administrative Tribunal Act 2013 (NSW), s 34B – original application before Tribunal involved disciplinary proceedings – whether original application involved federal jurisdiction – whether Tribunal's decision stayed by reason of subsequent proceedings in Federal Court between applicant and an insurer Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 34B Commonwealth of Australia Constitution Act, s 109 Insurance Contracts Act 1984 (Cth), s 13 Judiciary Act 1903 (Cth), s 78B Vexatious Proceedings Act 2008 (NSW), ss 8, 9(4) Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3 Burns v Corbett; Gaynor v Burns (2018) 265 CLR 304; [2018] HCA 15 Deputy Commissioner of Taxation v Warwick (No 2) [2004] FCA 918; (2004) 56 ATR 371 Mao v AMP Superannuation Ltd [2018] NSWCA 72 New South Wales Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32 Quach v MLC Limited (No 4) [2020] FCA 532 Quach v MLC Limited (No 6) [2021] FCA 271 Quach v Health Care Complaints Commission; Quach v NSW Civil and Administrative Tribunal [2018] NSWCA 175 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 Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267 Quach v New South Wales Civil and Administrative Tribunal [2022] NSWCA 176 Zetta Jet Pte Ltd v The Ship "Dragon Pearl" (No 2) [2018] FCAFC 132; (2018) 265 FCR 290 Category: Procedural rulings 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. MEAGHER JA: I agree with Gleeson JA. 2. GLEESON JA: Application is made by Mr Michael Van Thanh Quach by notice of motion filed 5 April 2022 to set aside an order made by the Court on 20 October 2017 under s 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW) (the Act) prohibiting Mr Quach from instituting a further proceeding in New South Wales relating to: the subject matter of proceedings 1420086 and 1420065 in the New South Wales Civil and Administrative Tribunal (NCAT) (entitled "Health Care Complaints Commission v Quach") or relating to proceedings 2015/158685, 2015/67618 and 2015/48269 in the New South Wales Court of Appeal. [1] 1. Mr Quach also sought relief in par [2] of his motion, relevantly, that I recuse myself for apprehended bias on the ground of prejudgment given my participation in an earlier decision of the Court in November 2020 dismissing a previous application by Mr Quach seeking the same relief. By judgment delivered on 9 September 2022, I declined the recusal application. [2] Insofar as par [2] of the motion also sought the recusal of some other judges of the Court, none of those judges is a member of the court hearing the present application. 2. The respondents to the application are the New South Wales Civil and Administrative Tribunal (the Tribunal) and the New South Wales Health Care Complaints Commission (the Commission). Only the Commission was an active respondent. 3. Mr Quach and the Commission each filed written submissions. The Registrar informed the parties that the Court would deal with the application on the papers. 4. The Commission's position is that the Court should decline to consider the motion pursuant to s 9(4) of the Vexatious Proceedings Act or otherwise dismiss the motion as being an abuse of process. Background 1. It is of assistance to explain briefly the background to the present application. 2. On 21 April 2015, the Tribunal made orders including cancelling Mr Quach's registration as a medical practitioner. [3] Mr Quach unsuccessfully sought judicial review of that decision. Not being satisfied with the decisions of this Court rejecting his applications for judicial review, Mr Quach sought to reagitate his contentions by making further applications by notice of motion filed in this Court. Each of those further applications was unsuccessful. The relevant procedural history is set out in the judgment of this Court delivered on 20 October 2017 [4] in which the vexatious proceeding order was made. 3. Mr Quach has sought, unsuccessfully, to set aside this order on four occasions: 9 August 2018, [5] 20 March 2019, [6] 15 August 2019, [7] and 18 November 2020. [8] 4. Subject to one new contention, the present application proceeds on similar grounds to Mr Quach's last application which was dismissed in 2020. 5. First, Mr Quach submitted that a vexatious proceeding order cannot be made in interlocutory proceedings, referring to the decision of the Full Federal Court in Zetta Jet Pte Ltd v The Ship "Dragon Pearl" (No 2). [9] As this Court said for the reasons given in its 2020 judgment, 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. [10] 6. Second, Mr Quach raised what he asserts is a constitutional question. He says, without expressly identifying any Commonwealth law, that the vexatious proceeding order is inconsistent with Commonwealth law and is therefore invalid pursuant to s 109 of the Constitution. 7. In his submissions, Mr Quach referred to Quach v MLC Limited (No 4) [2020] FCA 532 in support of the constitutional question. The subject matter of those proceedings is a claim by Mr Quach against MLC Ltd (MLC) in the Federal Court of Australia that MLC had failed to indemnify him under an income protection policy providing cover in the event of total and permanent or partial disability and critical illness, and that MLC had breached its duty of utmost good faith under s 13 of the Insurance Contracts Act 1984 (Cth). That claim was dismissed by Rares J on 2 March 2021, [11] however, Mr Quach has appealed from that decision as is evident from a decision of Cheeseman J on 20 May 2022 who ordered that he provide security for costs in respect of his appeal. [12] 8. Plainly, there is no inconsistency between the duty of utmost good faith implied in contracts of insurance by s 13 of the Insurance Contracts Act and the power of the Supreme Court to make an order under s 8 of the Vexatious Proceedings Act. The suggestion to the contrary which is implicit in Mr Quach's submissions is frivolous and unarguable. 9. In these circumstances, although there is no evidence that Mr Quach has given notices to the Commonwealth and State Attorneys-General pursuant to s 78B of the Judiciary Act 1903 (Cth), there is no basis for staying this application pursuant to s 78B for that to occur because of the mere reference in Mr Quach's written submissions to the Constitution. As French J said in Deputy Commissioner of Taxation v Warwick (No 2) [13] : That section does not impose a duty on the Court not to proceed pending the issue of notices to the Attorneys-General in every case in which the Constitution is mentioned in a pleading no matter how trivial, unarguable or concluded the constitutional point may be – Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 167 ALR 303 at 308 [14] and the cases there cited. No arguable defence and no basis for staying the proceedings pursuant to s 78B of the Judiciary Act was disclosed by reason of the reference in the pleadings to the Constitution. See also Mao v AMP Superannuation Ltd. [14] 1. The new contention raised in Mr Quach's supplementary submissions filed 30 June 2022 is that the decision of the Tribunal in 2015 to cancel his registration as a medical practitioner is stayed pursuant to s 34B(4)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (Tribunal Act) by virtue of the proceedings and appeals brought by Mr Quach in the Federal Court, which can be taken to be a reference to the proceedings against MLC. 2. Section 34B of the Tribunal Act is contained in Pt 3A ("Federal proceedings") of that Act. Pt 3A was introduced on 1 December 2017 following this Court's decision in Burns v Corbett; Gaynor v Burns (2017) 96 NSWLR 247; [2017] NSWCA 3 which held that the Tribunal cannot exercise federal diversity jurisdiction because it is not a court invested with such jurisdiction by the Judiciary Act. The High Court affirmed this Court's decision: Burns v Corbett; Gaynor v Burns (2018) 265 CLR 304; [2018] HCA 15. 3. The effect of s 34B is that where the Tribunal does not have jurisdiction to determine an original application or external appeal because to do so would involve an exercise of federal jurisdiction, a person with standing to make such an application or external appeal may, with leave of the Local Court or the District Court, make the application or appeal to the court instead of the Tribunal: ss 34B(1) and 34B(2)(b). 4. Section 34B(4), upon which Mr Quach relies, relevantly provides: … (4) If an appeal is made under this Act in relation to any matter in issue in the application or appeal— (a) for an appeal lodged before the application for leave is made to an authorised court—the court cannot grant leave unless and until the appeal is determined, or (b) for an appeal lodged on or after leave is granted by an authorised court—proceedings in the court concerning the application or appeal are stayed until the appeal made under this Act is determined. … 1. The effect of s 34B(4) is to constrain the power of the Local Court or District Court to determine an application or appeal that the Tribunal cannot determine because it involves the exercise of federal diversity jurisdiction, but only if there is a separate appeal properly before the Tribunal in relation to a matter which is also in issue in such an application or appeal. 2. This provision has no present relevance to the Tribunal's decision in 2015. 3. First, the disciplinary proceedings against Mr Quach in the Tribunal did not involve federal jurisdiction. Second, there is no application or appeal before an authorised court. Third, there is no relevant separate appeal before the Tribunal brought by Mr Quach. Fourth, the Federal Court proceedings and the appeal brought by Mr Quach in that Court have no legal effect on the Tribunal's 2015 decision. Conclusion 1. This fifth application by Mr Quach to set aside the vexatious proceedings order made in 2017 should be dismissed as an abuse of process. 2. There is no reason why costs should not follow the event of the motion: Uniform Civil Procedure Rules 2005 (NSW), r 42.1. A costs order should be made in favour of the Commission, which was the only active respondent to the motion. Orders 1. For the above reasons, I propose the following orders: 1. The applicant's notice of motion filed 5 April 2022 be dismissed as an abuse of process. 2. The applicant to pay the second respondent's costs of the motion. 1. MITCHELMORE JA: I agree with Gleeson JA. ********** Endnotes 1. Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267. 2. Quach v New South Wales Civil and Administrative Tribunal [2022] NSWCA 176. 3. New South Wales Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32. 4. Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267 at [5]-[8], [45]-[103]. 5. Quach v Health Care Complaints Commission; Quach v NSW Civil and Administrative Tribunal [2018] NSWCA 175. 6. Quach v NSW Civil and Administrative Tribunal [2019] NSWCA 49. 7. Quach v NSW Civil and Administrative Tribunal [2019] NSWCA 200 at [2]-[3]. 8. Quach v New South Wales Civil and Administrative Tribunal [2020] NSWCA 295. 9. [2018] FCAFC 132; (2018) 265 FCR 290 at [14] (Allsop CJ, Moshinsky and Colvin JJ). 10. Quach v New South Wales Civil and Administrative Tribunal [2020] NSWCA 295 at [7]-[8]. 11. Quach v MLC Limited (No 6) [2021] FCA 271. 12. Quach v MLC Limited [2022] FCA 586. 13. [2004] FCA 918; (2004) 56 ATR 371 at [103]. 14. [2018] NSWCA 72 at [16]-[19]. 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