Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Quach v New South Wales Health Care Complaints Commission (No 5) [2016] NSWCA 366 Hearing dates: On the papers Date of orders: 16 December 2016 Decision date: 16 December 2016 Before: McColl JA at [1]; Macfarlan JA at [20], Sackville AJA at [21] Decision: Motion dated 26 October 2016 dismissed as vexatious and an abuse of process. Catchwords: PRACTICE – where applicant subject to order in terms of Teoh v Hunters Hill Council (No 4) (2011) 81 NSWLR 771 – where applicant filed notice of motion – whether applicant had shown cause in writing why the motion should not be dismissed as vexatious and an abuse of process – motion dismissed Legislation Cited: Civil Procedure Act 2005 (NSW) Health Care Complaints Commission Act 1993 (NSW) Cases Cited: Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10 Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 49 Quach v New South Wales Health Care Complaints Commission (No 3) [2016] NSWCA 284 Quach v New South Wales Health Care Complaints Commission (No 4) [2016] NSWCA 285 Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44 Category: Principal judgment Parties: Michal Van Than 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: Self represented (Applicant) N/A (First Respondent) N/A (Third Respondent) Solicitors: N/A (Applicant) N/A (First Respondent) N/A (Third Respondent) File Number(s): 2015/158685 Publication restriction: No [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. McCOLL JA: The history of this matter is relevantly set out in Quach v New South Wales Health Care Complaints Commission (No 4) (Quach (No 4)) [1] as follows: "1 In Quach v New South Wales Health Care Complaints Commission (Quach (No 3)), the Court dismissed the applicant's challenge to the following order (Teoh Order) made by Meagher JA on 21 March 2016 in Quach v Health Care Complaints Commission of New South Wales (Quach (No 2)): '8. Direct the Registrar, should Mr Quach file any further notice of motion in these proceedings (other than an application seeking a review of this decision), to vacate the return date of that motion, notify the parties and refer the papers to a judge nominated by the President to determine, in chambers, whether the Court should fix a new return date and notify the parties of that date, or whether Mr Quach should be invited to show cause in writing why the Court should not in chambers summarily dismiss the application as vexatious and an abuse of process.' 2 The jurisprudence underpinning the Teoh Order is discussed in Quach (No 3). 3 Subsequent to the Teoh Order, Mr Quach filed three notices of motion on 6 June 2016, 26 July 2016 and 16 August 2016 respectively (further motions). Each identifies the Health Care Complaints Commission (Commission), the New South Wales Civil and Administrative Tribunal (NCAT) and the Attorney General of New South Wales as those persons or entities against whom or which the orders are sought (respondents). 4 On 30 June 2016 and 27 July 2016, Meagher JA directed Mr Quach to show cause in writing why the Court should not summarily dismiss the 6 June and 26 July 2016 motions in chambers as vexatious and an abuse of process. On 18 August 2016, Beazley P directed Mr Quach to show cause in writing why the Court should not summarily dismiss the 16 August 2016 motion in chambers as vexatious and an abuse of process. Mr Quach has filed written submissions purporting to show cause in respect of all three motions. In addition, as shall become apparent, Mr Quach included in each motion, statements in the nature of submissions to support the orders he seeks." (footnotes omitted) 1. This judgment is written on the basis that readers are familiar with Quach v New South Wales Health Care Complaints Commission (Quach (No 1)), [2] Quach v New South Wales Health Care Complaints Commission (Quach (No 2)), [3] Quach v New South Wales Health Care Complaints Commission (No 3) (Quach (No 3)) [4] and Quach (No 4), although those decisions are referred to the extent necessary to afford context. 2. In Quach (No 4), pursuant to the directions referred to (at [4]), the Court considered whether any of Mr Quach's 6 June 2016, 26 July 2016 or 16 August 2016 motions should be summarily dismissed as vexatious and an abuse of process, or whether the material filed by Mr Quach warranted a hearing in which any respondent to those motions would participate. The Court held that Mr Quach had not shown cause why any of the motions should not be dismissed as vexatious or an abuse of process. Accordingly, on 19 October 2016 the Court dismissed all three motions. 3. On 26 October 2016 Mr Quach filed a further motion (October 2016 motion). That motion again identifies the Health Care Complaints Commission (Commission), the New South Wales Civil and Administrative Tribunal (NCAT) and the Attorney General as those persons or entities against whom or which the orders are sought. 4. On 27 October 2016 Beazley P directed Mr Quach to file submissions in support of the October 2016 motion, with those submissions also addressing why the Court should not in chambers summarily dismiss the application as being vexatious and an abuse of process. 5. The October 2016 motion seeks first, an order for a review of Meagher JA's decision in Quach (No 2) (Order 1), secondly, an order to "nullify" that decision (Order 2), thirdly, an order to "nullify" the judgment of "McColl J, McFarlan J and Sackville J of the 19 October 2016" (Order 3), and fourthly, orders that the 6 June 2016, 26 July 2016 and 16 August 2016 motions "be heard by the full bench" (Orders 4, 5 and 6). 6. Mr Quach filed written submissions on 28 October 2016. He also included in the motion itself statements in the nature of submissions to support the orders sought. 7. Again, the question to be determined in chambers is whether the October 2016 motion should be summarily dismissed as vexatious and an abuse of process, or whether the material filed by Mr Quach warrants a hearing in which any respondent to the motion would be required to participate. Orders 1 and 2 1. The October 2016 motion seeks, first, an order for a review of Meagher JA's decision in Quach (No 2), and secondly, an order to "nullify" that decision (Orders 1 and 2). 2. In the body of the motion, under the heading "Grounds for the Notice of Motion, Order 1 and 2", Mr Quach submits that pursuant to the decision of the High Court in Re JJT; Ex parte Victoria Legal Aid, [5] there is no source of power in the Health Care Complaints Commission Act 1993 (NSW) (HCCC Act) to "construct and sustain" any costs orders made in the Commission's favour. In his affidavit in support of the motion, Mr Quach referred to paragraphs [41.1] and [41.2] of Re JJT. Accordingly, he contends Meagher JA's decision in Quach (No 2) is "null". 3. Save to the extent Meagher JA's fifth and ninth orders ordered Mr Quach to pay the Commission's costs in Quach (No 2), no part of his Honour's decision concerned costs. In Quach (No 3), [6] the court as presently constituted dealt with a similar contention made by Mr Quach on his application to review Quach (No 2) to the effect that there was no power in the HCCC Act constituting the Commission to award costs in its favour. [7] As was pointed out, the source of power to award costs in relation to proceedings in this Court is s 98 of the Civil Procedure Act 2005 (NSW). 4. Insofar as the October 2016 motion seeks a review of Quach (No 2), Mr Quach's review application was determined in Quach (No 3). Mr Quach has not identified any basis upon which Quach (No 3) could be set aside such as to warrant a further review of Quach (No 2). Orders 3, 4, 5 and 6 1. Mr Quach's October 2016 motion next seeks an order to "[n]ullify the Judgement of McColl J, McFarlan J and Sackville J of the 19 October 2016" [sic, as in original] (Order 3), and orders that Mr Quach's 6 June 2016, 26 July 2016 and 16 August 2016 motions "be heard by the full bench" (Orders 4, 5 and 6). 2. Under the heading "Grounds for the Notice of Motion, Order 3, 4, 5, 6", Mr Quach contends: "8. No Orders were made by Meagher J in relation to Notice of Motion 6 June 2016 and 26 July 2016. 9. No Orders were made by the President, Beazley J in relation to Notice of Motion 16 August 2016. 10. Notices of Motion of 6 June 2016, 26 July 2016, 16 August 2016 were not dealt with by Meagher J on 9 March 2016. Their Honours McColl J, McFarlan J and Sackville J did not have the power to determine Notices of Motion in Orders sought 4, 5, 6. McColl J stated, 'Any matter which was dealt with by Justice Meagher which was the subject of your application for a review will be dealt with by this Court.' (page 2, line 31-32 of transcript of 22 August 2016) 11. The Judgement in Quach v HCCC [2016] NSWCA 285 is null." 1. Quach (No 3), which reviewed Quach (No 2) (which was delivered on 21 March 2016), did not deal with Mr Quach's motions of 6 June 2016, 26 July 2016 and 16 August 2016 for the obvious reason that they were not before Meagher JA. Rather, as set out above, at [1], those motions were dealt with in chambers pursuant to the Teoh Order and dismissed as vexatious and an abuse of process in Quach (No 4). 2. Mr Quach's submissions in the body of his motion contend that the Court "did not have the power to determine" those motions, apparently because of a statement in the course of the hearing on 22 August 2016 of his application for review of Quach (No 2) that "[a]ny matter which was dealt with by Meagher JA in Quach (No 2) which was the subject of [Mr Quach's] application for a review will be dealt with by this Court". That is what happened in Quach (No 3). 3. It was explained to Mr Quach during the 22 August 2016 hearing that the motions which post-dated Quach (No 2) were subject to the Teoh Order made by Meagher JA and would therefore be dealt with in chambers. [8] That is what happened in Quach (No 4). Conclusion 1. Mr Quach's submissions appear to contend, in substance, that because the October 2016 motion seeks a review of Quach (No 2), the Teoh Order made by his Honour in Quach (No 2) does not apply. It is true that there was a carve-out in the Teoh Order for a review of Quach (No 2). The right of review has been exhausted. Mr Quach cannot avoid the consequences of the Teoh Order by seeking a further review of Quach (No 2). His attempts to do so underline the reason the Teoh Order was made. 2. Mr Quach has not demonstrated any reason why the October 2016 motion should not be dismissed as vexatious or an abuse of process. I would so order. 3. MACFARLAN JA: I agree with McColl JA. 4. SACKVILLE AJA: I agree with McColl JA. ********** Endnotes 1. [2016] NSWCA 285. 2. [2016] NSWCA 10. 3. [2016] NSWCA 49. 4. [2016] NSWCA 284. 5. (1998) 195 CLR 184; [1998] HCA 44 (Re JJT). 6. (at [58]). 7. See also Quach (No 4) (at [37] – [41]). 8. Transcript of hearing, 22 August 2016, p 2. 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: 16 December 2016