Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10 Hearing dates: 3 February 2016 Decision date: 10 February 2016 Before: McColl JA at [1]; Meagher JA at [2]; Leeming JA at [3] Decision: (1) Reject the Practitioner's tender of the TGA document dated 27 August 2009 concerning Gardasil and the transcripts of proceedings before NCAT prepared by the Practitioner.

(2) Amended summons filed 12 May 2015 dismissed.

(3) Paragraph 2 of the notice of motion filed 21 October 2015 dismissed.

(4) Paragraph 3 of the notice of motion filed 21 October 2015 stood over to a date to be advised for directions before the Registrar.

(5) Notice of motion filed 8 December 2015 dismissed.

(6) Notice of motion filed 28 January 2016 stood over to a date to be advised for directions before the Registrar.

(7) The Practitioner is to pay the Commission's costs of the amended summons filed 12 May 2015, the notice of motion filed 8 December 2015 and paragraph 2 of the notice of motion filed 21 October 2015. Catchwords: ADMINISTRATIVE LAW – judicial review for jurisdictional error – decision of New South Wales Civil and Administrative Tribunal (NCAT) to deregister medical practitioner – whether NCAT properly constituted by appointment of acting judge of District Court as a member – whether judicial member had conflict of interest – whether denial of procedural fairness by NCAT's questioning of witnesses or accepting opinion evidence of general practitioner – whether apprehended bias disclosed by various procedural rulings of NCAT – significance of practitioner failing to exercise right of appeal – no ground of review made out – proceedings dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 4, 8, 9, 10, 15; Sch 5, Pt 6, cl 29 District Court Act 1973 (NSW), s 18 Supreme Court Act 1970 (NSW), ss 48, 69 Cases Cited: Ebner v Official Trustee [2000] HCA 63; 205 CLR 337 Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 Halverson v Dobler Halverson by his tutor v Dobler [2006] NSWSC 1307 Health Care Complaints Commission v Quach [2015] NSWCATOD 2 Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Quach v Health Care Complaints Commission (No 2) [2015] NSWCA 311 Quach v Health Care Complaints Commission [2015] NSWCA 187 Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63 Category: Principal judgment Parties: Michael Van Thanh Quach (Applicant) New South Wales Health Care Complaints Commission (First Respondent) New South Wales Civil and Administrative Tribunal (Second Respondent) Attorney-General of New South Wales (Third Respondent) Representation: Counsel: Applicant in person Ms K H Richardson (First Respondent) Mr B K Lim (Third Respondent) Submitting appearance by Second Respondent