Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Quach v New South Wales Civil and Administrative Tribunal [2019] NSWCA 49 Hearing dates: 12 March 2019 (on the papers) Decision date: 20 March 2019 Before: Gleeson JA at [1] Leeming JA at [17] McCallum JA at [18] Decision: Dismiss the notice of motion filed 29 August 2018. Catchwords: JUDGMENTS AND ORDERS – Court of Appeal – Judges of Appeal – Appointment, tenure and remuneration – Whether Court of Appeal invalidly constituted so as to invalidate orders – Whether s 72 Commonwealth Constitution governs the maximum permissible age of judges of State Supreme Courts Legislation Cited: Commonwealth Constitution, ss 71, 72 Constitution Alteration (Retirement of Judges) Act 1977 (Cth), s 2 Constitutional Alteration (Referendums) 1977 Judiciary Act 1903 (Cth), s 39(2), 78B Justice Legislation Amendment Act (No 3) 2018 (NSW), Sch 2, Cl 2.8, Item [2] Supreme Court Act 1970 (NSW), ss 37, 37(4A) Vexatious Proceedings Act 2008 (NSW), ss 3(1), 8(7)(a), 8(7)(b), 9(1), 9(4) Cases Cited: Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; [2006] HCA 44 Kable v The Director of Public Prosecutions for the State of New South Wales (1996) 189 CLR 51 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 Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2018] NSWCA 175 Category: Principal judgment 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. GLEESON JA: Application is made by Mr Michael Van Thanh Quach by notice of motion filed 29 August 2018 to set aside a vexatious proceedings order made by the Court on 20 October 2017 in proceedings 2015/158685 [1] . That order was made under s 8(7)(a) and (b) of the Vexatious Proceedings Act 2008 (NSW). 2. Section 9(1) of the Vexatious Proceedings Act provides that "an authorised court may, by order, vary or set aside a vexatious proceedings order that the court has made" (emphasis added). The Supreme Court is an authorised court: s 3(1). Section 9(2) provides that an authorised court may make the order on its own motion or on the application of, among others, the person subject to the vexatious proceedings order: s 9(2)(a). Mr Quach has standing to make the present application. 3. Section 9(4) of the Vexatious Proceedings Act provides that "an authorised court may decline to consider an application to vary or set aside a vexatious proceedings order made by the person subject to the order if the Court is not satisfied that the application is materially different from an earlier application to vary or set aside the same order that was not successful". Background 1. On 20 October 2017, the Court made orders under the Vexatious Proceedings Act in three proceedings (2015/158685, 2015/67618 and 2015/48269) in which Mr Quach had unsuccessfully sought to set aside, by way of judicial review, certain decisions of the New South Wales Civil and Administrative Tribunal (NCAT) in medical disciplinary proceedings brought by the Health Care Complaints Commission against him. [2] The outcome of the disciplinary proceedings was that Mr Quach's registration as a medical practitioner was cancelled. It is not necessary for present purposes to otherwise refer to the history of the proceedings before NCAT or Mr Quach's unsuccessful attempts to set aside NCAT's decisions in this Court. 2. On 20 November 2017, Mr Quach filed notices of motion in each of the three proceedings in this Court seeking to set aside the vexatious proceedings orders on the ground that this Court, when making those orders, was not properly convened according to s 72 of the Constitution. The constitutional argument advanced by Mr Quach was that the Court was invalidly constituted because one of the members of the Court, Sackville AJA, exceeded the age of 70 years, which is "the maximum age for Justices of any court created by Parliament" as referred to in s 72 of the Constitution. 3. On 9 August 2018, the Court dismissed the three notices of motion filed 20 November 2017. [3] The Court explained the error in Mr Quach's contention that the permissible maximum age of an acting Judge of Appeal of this Court is 70 years. Simply stated, State Supreme Courts are not created by Commonwealth Parliament and the federal provisions relating to the appointment and tenure of judges of courts created by the Commonwealth Parliament, including the maximum age of 70 years under s 72 of the Constitution, do not apply to State Supreme Courts. Reference was made to statements to this effect by Gleeson CJ in Forge v Australian Securities and Investments Commission, [4] and by Gaudron J, Dawson J and McHugh J in Kable v The Director of Public Prosecutions for the State of New South Wales. [5] 4. In the case of the Supreme Court of New South Wales, s 37 of the Supreme Court Act 1970 (NSW) deals with the appointment of qualified persons to act as a Judge or a Judge of Appeal in this State. At the time the vexatious proceedings orders were made against Mr Quach, the effect of s 37(4A) of the Supreme Court Act was that a retired Judge of the Federal Court of Australia may be appointed an Acting Judge and Judge of Appeal of this Court, even though he or she has reached the age of 70 years, provided the appointment for any period does not extend beyond the day on which he or she reaches the age of 77 years. [6] 5. The Court also explained the error in Mr Quach's reliance upon s 71 of the Constitution. Section 71 deals with the vesting of federal jurisdiction in the High Court, in such other federal courts as the Parliament creates and such other courts as it invests with federal jurisdiction. However, it does not follow that because State Supreme Courts have been invested with federal jurisdiction, [7] the appointment and tenure of judges of State Supreme Courts is governed by s 72 of the Constitution. The Court said at [19]: Plainly, s 71 of the Constitution draws a distinction between the vesting of federal jurisdiction in courts created by the Commonwealth Parliament and such other courts as it invests with federal jurisdiction, being courts not created by the Commonwealth Parliament, including existing State courts. The vesting of federal jurisdiction, relevantly, in State Supreme Courts by s 39(2) of the Judiciary Act does not have the consequence that those courts are to be taken as having been created by the Commonwealth Parliament. 1. The Court concluded that it was not in doubt that as a retired Judge of the Federal Court of Australia, Sackville AJA was qualified to act as a Judge of Appeal of this Court at the time the Court made the vexatious proceedings orders. The present application 1. The sole ground of Mr Quach's notice of motion filed 29 August 2018 is as follows: The Vexatious Proceeding Act 2008 (NSW) does not apply to 2015/158685 because the Court was not properly convened pursuant to Constitutional Alteration (Retirement of Judges) Act 1977 (No 83 of 1977). 1. There is affidavit evidence from Mr Quach dated 21 September 2018 that he has issued notices under s 78B of the Judiciary Act 1903 (Cth) to all Attorneys-General of the Commonwealth, States and Territories. None have sought to appeal or intervene in the present applications. 2. In his written submission dated 5 October 2018, Mr Quach again asserted that the maximum age of 70 years for judges of Federal courts is binding on State courts, given that State Supreme Courts have been invested with federal jurisdiction as permitted by s 71 of the Constitution. Mr Quach referred to s 2 of the Constitution Alteration (Retirement of Judges) Act 1977 (Cth) which introduced the amendments to s 72 of the Constitution, following the requisite approval of proposed amendments to s 72 of the Constitution at a referendum in 1977. [8] 3. As indicated, Mr Quach's arguments based upon the Constitution, ss 71 and 72, were addressed and rejected by this Court in 2018 when dismissing Mr Quach's previous applications to set aside the vexatious proceedings orders. [9] The reference by Mr Quach to s 2 of the Constitution Alteration (Retirement of Judges) Act does not advance his argument. 4. No new matter or circumstance has been raised by Mr Quach as a basis for setting aside the vexatious proceedings order. 5. Given that the present application is not materially different from Mr Quach's earlier unsuccessful application to set aside the vexatious proceedings order, the Court could decline to deal with this application relying upon s 9(4) of the Vexatious Proceedings Act. Nonetheless, I think it preferable, as Mr Quach is without legal representation, to give short reasons why the present application, like the application in 2018, is misconceived and must be dismissed. Order 1. Accordingly, I propose the following order: 1. Dismiss the notice of motion filed 29 August 2018. 1. LEEMING JA: I agree with Gleeson JA. 2. McCALLUM 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. Ibid. 3. Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2018] NSWCA 175 (Gleeson JA, Payne and White JJA agreeing). 4. (2006) 228 CLR 45; [2006] HCA 44 at [38]. 5. (1996) 189 CLR 51, 80-81 (Dawson J), 102 (Gaudron J), 115 (McHugh); [1996] HCA 24. 6. The reference in s 37(4A) of the Supreme Court Act to "77 years" was amended to read "78 years" by the Justice Legislation Amendment Act (No 3) 2018 (NSW), Sch 2, cl 2.8, item [2]. 7. By s 39(2) of the Judiciary Act 1903 (Cth). 8. Constitutional Alteration (Referendums) 1977. 9. Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2018] NSWCA 175 (Gleeson JA, Payne and White JJA agreeing). 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: 20 March 2019