Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Quach v New South Wales Civil and Administrative Tribunal [2019] NSWCA 200 Hearing dates: 13 August 2019 (on the papers) Decision date: 15 August 2019 Before: Gleeson JA at [1] Leeming JA at [6] McCallum JA at [7] Decision: (1) Note that pursuant to s 9(4) of the Vexatious Proceedings Act 2008 (NSW), the Court declines to consider the notice of motion filed 1 April 2019 seeking to set aside the vexatious proceedings order made on 20 October 2017. (2) Dismiss the notice of motion filed 23 April 2019. Catchwords: JUDGMENTS AND ORDERS – Court of Appeal – third application to set aside vexatious proceedings order – where applicant seeks to re-agitate matters already decided in judicial review proceedings – no new matter raised – where Court may decline to consider the application – Vexatious Proceedings Act 2008 (NSW), s 9(4) Legislation Cited: Commonwealth Constitution, s 72 Vexatious Proceedings Act 2008 (NSW), ss 8, 9 Cases Cited: 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 Quach v New South Wales Civil and Administrative Tribunal [2019] NSWCA 49 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 1 April 2019 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. Notwithstanding the dismissal of two previous applications by Mr Quach to set aside the vexatious proceedings order, Mr Quach's present application raises the same contention as advanced in support of his previous applications. The Court has explained in its previous judgments given on 9 August 2018 [2] and on 20 March 2019 [3] why there is no merit in Mr Quach's contention that this Court, when making the order on 20 October 2017, was not properly convened because one of the members of the Court, Sackville AJA, exceeded the age of 70 years. It is not necessary to repeat that explanation here. 3. Since the present application is not materially different from Mr Quach's earlier unsuccessful applications to set aside the vexatious proceedings order, the Court may decline to consider the application. [4] That is the appropriate course here. 4. Mr Quach also filed a further notice of motion on 23 April 2019 seeking to review the decision of Registrar Riznyczok on 8 April 2019 to decline to direct the respondents to file and serve written submissions in response to his application. The respondents are the New South Wales Civil and Administrative Tribunal and the New South Wales Health Care Complaints Commission. That notice of motion should be dismissed. First, the filing of that motion was precluded by the terms of the vexatious proceedings order made on 20 October 2017, and Mr Quach had not sought or obtained a variation of such order [5] to permit the filing of the motion. Second, and in any event, there is no conceivable basis for doubting the correctness of the procedural direction given by the Registrar. There was no utility in directing the respondents to spend time and incur costs in preparing submissions in relation to an application entirely without merit. Orders 1. Accordingly, I propose the following notation and order: 1. Note that pursuant to s 9(4) of the Vexatious Proceedings Act 2008 (NSW), the Court declines to consider the notice of motion filed 1 April 2019 seeking to set aside the vexatious proceedings order made on 20 October 2017; 2. Dismiss the notice of motion filed 23 April 2019. 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. 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). 3. Quach v New South Wales Civil and Administrative Tribunal [2019] NSWCA 49 (Gleeson JA, Leeming and McCallum JJA agreeing). 4. Vexatious Proceedings Act 2008 (NSW), s 9(4). 5. Under Vexatious Proceedings Act, s 9(1). 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: 15 August 2019