Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Quach v Health Care Complaints Commission (No 2) [2015] NSWCA 311 Hearing dates: On the papers Decision date: 08 October 2015 Before: Meagher JA Decision: 1. Order the plaintiff pay the second defendant's costs of the notices of motion filed on 4 May 2015 and 23 June 2015, assessed on the ordinary basis up to and including 18 June 2015 and thereafter on an indemnity basis. Catchwords: COSTS – costs assessed on an indemnity basis – where order against litigant in person – where litigant in person notified that claimed interlocutory relief misconceived and unlikely to succeed Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Civil and Administrative Tribunal Act 2013 (NSW) Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), r 42.2 Cases Cited: Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Martin v State of New South Wales (No 6) [2011] NSWCA 281 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63 Reimers v Health Care Complaints Commission [2013] NSWCA 366 Category: Procedural and other rulings Parties: Michael Van Thanh Quach (Plaintiff) New South Wales Civil and Administrative Tribunal (First Defendant) Health Care Complaints Commission (Second Defendant) Attorney General of New South Wales (Third Defendant) Representation: Counsel: K Richardson (Second Defendant) B Lim (Third Defendant) Solicitors: Health Care Complaints Commission (Second Defendant) Michael Quach (Plaintiff) – self represented File Number(s): 2015/158685 Publication restriction: Nil [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: On 8 July 2015, two notices of motion filed by Mr Quach (the Practitioner) were dismissed with costs: [2015] NSWCA 187. The second defendant in those proceedings, the Health Care Complaints Commission (the Commission), seeks an order for payment of its costs of those motions assessed on an indemnity basis. The Commission has served written submissions dated 13 July 2015 in support of that application. The Practitioner was directed to provide written submissions in response by 20 July 2015. No written submissions have been received from or on behalf of the Practitioner. 2. The Court has a wide discretion under s 98 of the Civil Procedure Act 2005 (NSW) to make orders as to costs, including the basis upon which those costs are assessed. Generally, costs are to be assessed on the ordinary basis: Uniform Civil Procedure Rules 2005 (NSW), r 42.2. To justify a departure from that general rule there must be an aspect of the way in which the relevant proceedings were conducted which makes it just as between the parties that the successful party recovers costs on an indemnity basis. One circumstance where such an order may be appropriate is where the unsuccessful party "should have known that he had no chance of success" and pressed on regardless: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401. 3. The Practitioner's first motion, filed on 4 May 2015, sought orders including: 3. A stay of decision by Acting Judge Frank Marks of the NSW Civil and Administrative Tribunal. 4. An extension of time for appeal for merits review of decision by Acting Judge Frank Marks and New South Wales Civil and Administrative Tribunal, until all judicial reviews have concluded… 1. The second motion, filed on 23 June 2015, sought an order for a stay in the same terms as the first motion and also an order that the Practitioner be "registered unconditionally, as a medical practitioner". 2. The Practitioner sought the above orders in circumstances where he had chosen not to bring an appeal as of right from the final orders made by NCAT on a question of law or on any other ground by leave: Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, Pt 6, cl 29. 3. On two occasions prior to the hearing of these motions, the Practitioner was informed that his chances of successfully obtaining the relief sought in the underlying proceedings for judicial review were most doubtful. On 15 June 2015, the Registrar of the Court of Appeal advised the Practitioner that the Court may not make orders of the kind sought by him under s 69 of the Supreme Court Act 1970 (NSW), where a statutory right of appeal exists and has not been pursued. This was also explained by Sackville AJA in proceedings brought in this Court in relation to a challenge to an earlier decision of NCAT, again by means of judicial review: Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63 at [51]. 4. On 18 June 2015, the solicitor acting for the Commission wrote to the Practitioner outlining why the first notice of motion was "misconceived and will not be granted by a Court". That letter addressed why it was said that the Court would not stay the decision of NCAT or extend the time for the bringing of an appeal to a date after the judicial review proceedings were determined. The Practitioner's second notice of motion filed after receipt of that letter did not seek any additional relief on an interlocutory basis. 5. Each of the notices of motion was dismissed for substantially the same reasons as those referred to in the Commission's letter to the Practitioner. As to the application for a stay, there was no continuing operation of the Tribunal's order that might have been the subject of a stay: [2015] NSWCA 187 at [14]. In any event, it was unlikely that a stay would have been granted because of the serious nature of the findings against the Practitioner, the public interest in the Tribunal's exercise of its protective powers and the fact that the Practitioner had not pursued a statutory appeal: at [15]-[16]. As to the application for an extension of time in which to bring an "appeal for merits review", the remedy by way of appeal ought to have been pursued before that by way of judicial review and no summons seeking leave to appeal had been filed: at [21]-[22]. Finally, an order reinstating the Practitioner's registration could not be made in proceedings for judicial review: at [6]. 6. Where indemnity costs are sought against a litigant in person, the Court ought to consider the competing interests identified by Hodgson CJ in Eq in Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159. Allowances must be made in recognition of the difficulties faced by litigants in person and their lack of expertise. Equally, the "hardship and expense to other parties… [caused by] allegations and claims that lawyers would recognise as allegations and claims that could not reasonably or even properly be made" must be accounted for: at [13]. 7. This Court has made orders against litigants in person for the payment of indemnity costs where their proceedings were "obviously doomed to fail" and the litigant maintained the proceedings after having been informed of that fact, or of a procedural defect in the formulation of their claim: Reimers v Health Care Complaints Commission [2013] NSWCA 366 at [23] per Barrett JA (Macfarlan and Meagher JJA agreeing). See also Martin v State of New South Wales (No 6) [2011] NSWCA 281 at [8]. 8. Whilst the decision of the Practitioner to file the notices of motion might have been excused on account of his lack of legal expertise, no such allowance should be made after their difficulties were brought to his attention in June 2015. Notwithstanding the matters raised with him, the Practitioner persevered. In these circumstances, his conduct meets the description of the type of "delinquency" said to justify an order for the payment of costs on an indemnity basis: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [44]. 9. The Commission by its letter of 18 June 2015 informed the Practitioner of the unlikelihood of his success in pursuing his claims for interlocutory relief and of its intention to seek an order for indemnity costs if he continued to press those applications. For that reason any costs incurred by the Commission from that date and in relation to the notices of motion should be assessed on an indemnity basis. 10. Accordingly, the following order is made: 1. Order the plaintiff pay the second defendant's costs of the notices of motion filed on 4 May 2015 and 23 June 2015, assessed on the ordinary basis up to and including 18 June 2015 and thereafter on an indemnity basis. ********************* 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: 08 October 2015