Federal Court of Australia

Quach v RU [2024] FCAFC 32

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to appeal is refused.

2.    The applicant is to pay the respondent’s costs as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1.    INTRODUCTION

1    The appellant, Mr Quach, seeks leave to appeal against the decision in Quach v RU (No 2) [2020] FCA 957. The application for leave to appeal was referred to the Full Court by orders made by Wigney J on 16 October 2023 on the grounds that there was a real issue as to whether leave to appeal is required: Quach v RU [2023] FCA 1233 at [42]. As explained below, the primary judge dismissed the proceeding on the ground that it did not give rise to a justiciable controversy for the purposes of Chapter III of the Constitution and it constituted an abuse of process.

2    For the reasons explained below, we agree that leave to appeal against the primary judge’s decision is not required. However, Mr Quach requires an extension of time within which to appeal that decision. That application should be refused with costs on the grounds that the proposed appeal is completely lacking in any merit. It would not therefore be in the interests of justice to allow the extension of time.

2.    SECTION 78B NOTICE

3    On 4 December 2019, the respondent filed and served a notice of a constitutional matter in the proceeding at first instance in accordance with s 78B of the Judiciary Act 1903 (Cth) and orders made by the primary judge on 22 November 2019. The s 78B notice identified the constitutional issue as whether there was a justiciable “matter” for the purposes of Chapter III of the Constitution in circumstances where the subpoena to which the proceeding related to had been found to be ineffective and the proceedings to which the subpoena related had been finally disposed of in the Supreme Court of the Australian Capital Territory. None of the Attorneys-‍General intervened below.

4    No s 78B notice was issued on the appeal. However, for the reasons below, the argument that there was a live controversy between the parties with respect to the subject matter of the alleged dispute was untenable. That being so, the appeal does not in truth involve a matter arising under the Constitution or involving its interpretation for the purposes of s 78B: Re Culleton [2017] HCA 3; (2017) 340 ALR 550 at [29] (Gageler J) (cited with approval on this issue in Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476 at [44] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ), [76]–[78] (Edelman J)); Lavender v Commonwealth of Australia [2022] FCA 314 at [5] (Perry J).

3.    FACTUAL BACKGROUND

5    The factual background is helpfully set out in reasons of Wigney J at [3]–‍[20]. The key aspects of the background can therefore be summarised briefly as follows.

3.1    Proceedings in the ACT Supreme Court

6    Mr Quach is a deregistered medical practitioner. The Health Care Complaints Commission (HCCC) brought proceedings in the NSW Civil and Administrative Tribunal (NCAT) which ultimately resulted in his deregistration. Mr Quach brought a large number of proceedings in the NSW courts, including in the Court of Appeal, in relations to NCAT’s decisions. In the course of those proceedings, various costs orders were made against Mr Quach in favour of the HCCC.

7    On 18 December 2015, the respondent, a Legal Officer with the HCCC, attempted to enforce the costs orders by sending two emails to Mr Quach: see Quach v RU (No 2) [2017] ACTSC 234 at [3], [20] (Quach (No 2)). In response, on 26 February 2016, Mr Quach applied to the ACT Magistrates Court for a personal protection order (PPO) against the respondent under the (since repealed) Domestic Violence and Protection Orders Act 2008 (ACT). That application was summarily dismissed on 13 April 2016 on the basis that no reasonable cause of action was disclosed.

8    Mr Quach instituted an appeal in the ACT Supreme Court against that summary dismissal (proceedings SCA 36 of 2016) on 5 May 2016. Importantly, in the context of those proceedings, Mr Quach caused a subpoena to be issued out of the ACT Supreme Court on 12 August 2016, directed to the HCCC with which the HCCC refused to comply. As a result, on 19 September 2016, Mr Quach filed an application seeking to have the HCCC committed for contempt of court.

9    Following hearings of the appeal and the contempt application, Penfold J delivered two decisions on 21 August 2017.

10    In the first decision, Quach v RU (No 1) [2017] ACTSC 233 (Quach No 1), Penfold J held that:

(1)    the subpoena was not validly served in accordance with s 30(1)(b) of the Service and Execution of Process Act 1992 (Cth) (SEP Act), because the period between service and the date of compliance was less than 14 days (at [23]–[26]);

(2)    the subpoena was not validly served in accordance with s 31 of the SEP Act, because Mr Quach failed to attach the relevant prescribed notice (at [27]–[32]);

(3)    the subpoena was not validly served in accordance with s 32 of the SEP Act, because Mr Quach failed to tender conduct money when the subpoena was served (at [33]–‍[35]); and

(4)    none of the material sought in the subpoena could be relevant to the matters raised in Mr Quach’s appeal from the Magistrate’s decision and, as the appeal had been heard and Mr Quach had abandoned the prospect of obtaining any of the documents, there would be no scope for a new subpoena to be issued in the ACT proceedings (at [56]).

11    In the second judgment, Quach (No 2), Penfold J held at [75] that none of the grounds specified in the PPO application could reasonably have provided a basis for the making of a PPO against the respondent, and accordingly the Magistrate did not err in summarily dismissing Mr Quach’s application. Mr Quach’s appeal was therefore dismissed with costs.

12    Mr Quach sought to appeal all of the decisions of Penfold J to the ACT Court of Appeal, including her Honour’s final decision, but his applications for leave to appeal out of time and leave to appeal an interlocutory decision were refused: Quach v RU [2017] ACTCA 63.

3.2    The proceedings below

13    On 22 August 2019, Mr Quach filed an originating application in the original jurisdiction of the Federal Court claiming the following relief:

The question asked of the Federal Court of Australia is in its jurisdiction of the Service and Execution Process Act 1992 (Cth), whether it has any application to the Subpoena for discovery, dated 12 August 2016, issued by the Australian Capital Territory Supreme Court and served on the New South Wales Health Care Complaints Commission (Annexure ‘MQ1’ of Affidavit 20 August 2019).

The finding sought Is that the Service and Execution Process Act 1992 (Cth) does not have any application to the Subpoena for discovery, dated 12 August 2016, issued by the Australian Capital Territory Supreme Court and served on the New South Wales Health Care Complaints Commission (Annexure ‘MQ1’ of Affidavit 20 August 2019), pursuant to the definition of “Subpoena” in the Service and Execution Process Act 1992 (Cth), which “does not include a process that requires a person to produce a document in connection with discovery and inspection of documents.”

14    It follows, as the respondent contends, that these proceedings were plainly a collateral attack on the decision by the ACT Supreme Court in Quach (No 1).

15    In the accompanying statement of claim, Mr Quach simply restated those contentions. Leaving aside interlocutory skirmishes before the primary judge from which leave to appeal was refused, the proceeding was listed for final hearing on 29 May 2020 before the primary judge. On that day, his Honour delivered an ex tempore (oral contemporaneous) judgment and made the following orders:

1.    The proceeding be dismissed as an abuse of process.

2.    The applicant pay the respondent’s cost of the proceeding.

16    In his reasons (published on 15 July 2020 in Quach v RU (No 2) [2020] FCA 957), Rares J concluded at [26]–[27]:

In my opinion this application has no forensic merit. It is incapable of resolving any matter between the Commission or RU and Mr Quach. The subpoena could have no possible continuing force or effect following the dismissal of the appeal in which it was issued and Penfold J’s determination that service of it was not effective. It cannot be the subject matter of this or any other litigation.

For these reasons, I am of opinion that there is no “matter” or controversy between the parties. This proceeding must be dismissed for want of jurisdiction. Moreover, I am also of opinion that it is an abuse of process for the reasons I have given: Walton v Gardiner (1993) 177 CLR 378 at 392-393 per Mason CJ, Deane and Dawson JJ. I will order that the proceeding be dismissed as an abuse of process with costs.

3.3    The referral of the present application to the Full Court

17    As we have mentioned, the reason why Wigney J referred the present application in ACD 36/2020 to the Full Court is that, in his Honour’s view, it raised a real issue as to whether leave to appeal is required: Quach v RU [2023] FCA 1233 at [42]–[42]. At the same time, Wigney J refused leave to appeal in two other matters, ACD 91/2019 and 93/2019. As to the first of these matters, the applicant sought to challenge the order by Griffiths J that the respondent’s name not be published and that they be referred to by the pseudonym “RU”. As to the second matter, the applicant sought to challenge an order by the primary judge that the parties give such notices as are necessary under s 78B of the Judiciary Act 1903 (Cth) to raise any constitutional question by a specified date. That order was made in light of a foreshadowed application by the respondent to amend their defence to contend that the Court lacked jurisdiction by reason of there being no justiciable matter within Chapter III of the Constitution.

4.    LEAVE TO APPEAL IS NOT REQUIRED

18    Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) provides that an appeal shall not be brought from an interlocutory judgment unless the Court or a judge gives leave to appeal. However, if the judgment is final, there is no requirement to seek leave to appeal. As Edelman J in Plaintiff S164/2018 v Minister for Home Affairs [2018] HCA 51; (2018) 361 ALR 8 explained at [11] with respect to the distinction between a final and an interlocutory judgment:

The “usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them”. Whether the rights of the parties are finally determined by the order will depend on whether the legal, not the practical, effect of the judgment is final. If it is open to the parties to bring another application then the legal effect is not final, even if the second application would usually be “doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application”.

(Footnotes omitted.)

19    However, that distinction, as in the present case, is not necessarily easy to draw.

20    The question of whether dismissal of proceedings on the basis that the Court lacked jurisdiction was final or interlocutory in nature was considered, but not resolved, by the Full Court in Australia Bay Seafoods Pty Ltd v Northern Territory of Australia [2022] FCAFC 180; (2022) 295 FCR 443. In that case, the Full Court (Besanko, Charlesworth and O’Bryan JJ) held at [71]–‍[73] that:

While the test is readily stated, its application in some contexts can be difficult. One such context is the dismissal of a proceeding for want of jurisdiction. The authorities show that whether the dismissal is to be characterised as final or interlocutory will depend on the basis for the dismissal. A number of the authorities were discussed by French J (as his Honour then was) in SZAJB at [15]-[23]. Justice French expressed the following conclusions based on the authorities (at [23]):

Where a court holds that it lacks jurisdiction to entertain an application and that the application is to be dismissed as incompetent, the dismissal order effectively disposes of the proceedings in the court in which the application is brought. The order does not “finally dispose of the rights of the parties” in the sense necessary to characterise it as a final judgment. It simply means that the court in which the proceeding is brought lacks the authority to deal with it. It says nothing about the rights which the party seeks to vindicate. It may be that an application has been brought in the wrong court. So an application may be brought in the Federal Magistrates Court which exceeds the subject matter value by which the relevant jurisdiction of that court is defined. An order dismissing the application as incompetent would not finally dispose of the rights of the parties to it. They would simply have to go somewhere else. Similarly, an application brought before the Federal Court may be dismissed as incompetent on the basis that it lies outside the jurisdiction conferred by statute upon this Court. In the case of judicial review proceedings it may be that the matter could be entertained in the High Court in the exercise of the original jurisdiction conferred upon it by s 75(v) of the Constitution. The character of the order dismissing an application as incompetent is illustrated by these examples. It does not for that reason alone decide the rights or liabilities in issue. There may be a case like Zoya Kosmodemyanskaya 79 FCR 71 where the finding of want of jurisdiction flows from a finding on the merits. So if the finding of want of jurisdiction depends upon findings of jurisdictional fact fatal to the merits of the claim, then it may be said to be a final judgment.

In SZAJB, French J concluded (Allsop and Tracy JJ agreeing at [68] and [114] respectively) that orders made by the Federal Magistrates Court dismissing applications for review of certain migration decisions as outside time limits prescribed by the Migration Act 1958 (Cth) were interlocutory in character. While Allsop J agreed with that conclusion, his Honour noted (at [68]) the observations of Merkel J in Fifita v Minister for Immigration and Multicultural Affairs [2001] FCA 1695 that there is some tension between the Full Court decisions in Minogue v Williams (2000) 60 ALD 366 (Minogue v Williams) and Zoya Kosmodemyanskaya at 80 (an authority to which the Full Court in Minogue v Williams was not referred). Justice Allsop commented that, at some point, how Zoya Kosmodemyanskaya “fits into this analysis harmoniously may need to be addressed”.

It is unnecessary for the determination of this appeal to attempt any reconciliation between Minogue v Williams and Zoya Kosmodemyanskaya. The parties did not address substantive submissions to that question. Subsequent authorities would need to be considered, including the reasons of Edelman J in Plaintiff S164/2018 v Minister for Home Affairs (2018) 92 ALJR 1039; 361 ALR 8. Recent decisions of the Full Court of this Court support the conclusion that, where a proceeding has been dismissed for want of jurisdiction on the basis that the claims advanced are not justiciable, the dismissal is a final judgment, not interlocutory: see Luck v Chief Executive Officer of Centrelink (2017) 251 FCR 295 at [29] (considering the existence of jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth)) and Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union (2018) 264 FCR 342 at [46]-[48] per Rares and Barker JJ.

21    We agree that the better view is that the decision of the primary judge in this case should be characterised as final and, therefore, an appeal lies as of right subject to the question of whether an extension of time within which to appeal should be granted. This is a case where the finding that there was no live controversy and therefore no “matter” in a constitutional sense was based upon findings of jurisdictional fact which were fatal to the merits of the claim. Specifically, the primary judge held at [17] that:

[Justice Penfold’s] order dismissing the appeal in the Supreme Court [of the ACT] created a res judicata that extinguished of all Mr Quach’s rights against RU in respect of the subject matter of that proceeding. Moreover, the present case is unmaintainable since Mr Quach sought, somehow, to instigate it against RU in this Court in relation to a subject matter, namely the final decision of the Supreme Court in respect of the subpoena addressed to the Commission, that, transparently, had nothing to do with [RU].

22    Notwithstanding our view that the preferable characterisation of the judgment of the primary judge is that it is final in nature, as the issue is attended with some degree of uncertainty, we granted leave to appeal at the hearing out of an abundance of caution to the extent to which it may be necessary. That leaves Mr Quach’s application for an extension of time within which to appeal to be considered.

5.    THE APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO APPEAL

23    In the event, as we have held, that an appeal lies of right, the appeal was required to be instituted within 28 days after the 29 May 2020 orders were made (that is, on 26 June 2020): r 36.03 of the Federal Court Rules 2011 (Cth). It is common ground that the appeal was not instituted within time.

24    An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so. The discretion to extend time under r 36.05 of the Federal Court Rules is not confined by express criteria. However, there are a range of considerations which may appropriately be taken into account in the exercise of discretion, and which are of varying weight depending on the circumstances of the particular case, namely:

(1)    the length of the delay;

(2)    whether the applicant has demonstrated an acceptable explanation for the delay;

(3)    whether the respondent would suffer prejudice if the extension of time were granted; and

(4)    the merits of the substantive appeal, if the extension of time was granted.

See, eg, Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348–‍349 (Wilcox J) and Bechara v Bates [2018] FCA 460 at [17] (Perry J).

25    With respect to the last of these factors, it will generally be the case that the merits of the proposed appeal should be approached in a reasonably impressionist manner. Thus, in Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 178 ALD 573, Kiefel CJ, Gageler, Keane and Gleeson JJ explained at [17] that:

[I]t may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) [of the Migration Act 1978 (Cth)] (or s 477(2)) [powers to extend time], it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.

(Citations omitted.)

26    In support of the contention that he should be granted an extension of time, Mr Quach submitted first that the delay in instituting the appeal was a consequence of the delay between the delivery of oral ex tempore reasons by the primary judge on 29 May 2020 and the publication of his Honour’s written reasons on 15 July 2020, outside the 28 day period within which the appeal should have been instituted. In this regard, Mr Quach submitted that he had been unable to research the authorities on which the primary judge relied. The application for an extension of time and leave to appeal were filed on 10 August 2020, some 26 days after the publication of written reasons. In the circumstances, we accept that Mr Quach has provided a sufficient explanation for the delay in the institution of his applications. Nor did the respondent contend that they had suffered any prejudice as a consequence of the delay. The central issue therefore focuses on whether there is sufficient merit in the proposed appeal to grant the extension of time.

27    On this issue, Mr Quach submitted that the Court had jurisdiction because the issue was one arising under a Commonwealth law. Specifically, he sought to argue that Penfold J in Quach No 1 had wrongly held that the subpoena against the HCCC failed to comply with the SEP Act as that Act did not, in his view, apply to what he described as a “subpoena for discovery”. He further submitted that that issue was still live because the HCCC’s failure to comply with the subpoena, which he alleged was a contempt of Court, means that the subpoena remains outstanding. Finally, he submitted that there was an important issue of statutory construction to be determined by the Court as to the scope of the SEP Act.

28    However, the subpoena was issued in the context of litigation in the ACT Supreme Court before Penfold J. Mr Quach had an avenue of appeal against the decisions in Quach No 1 holding that the subpoena had not been validly served under the SEP Act and Quach No 2 dismissing the substantive application, namely, an appeal to the ACT Court of Appeal. Mr Quach pursued this avenue unsuccessfully. The question of whether the subpoena was valid under the SEP Act has therefore been determined, as have the proceedings to which it related. In other words, as the primary judge held at [20], “[t]he dismissal of the whole appeal [in the ACT] meant that the subpoena was no longer capable of serving any purpose in the Supreme Court proceeding because her Honour had determined that Mr Quach had no legally enforceable cause of action in respect of his litigated claims in it.” That being so, the question of whether the subpoena was validly served is now moot and Mr Quach seeks, in effect, an advisory opinion on the proper construction of the SEP Act which is beyond the Court’s jurisdiction to give: see In Re Judiciary Act 1903-1920 (1921) 29 CLR 257 at 265 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ); affirmed, e.g., in Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; (2022) 399 ALR 214 at [29] (Kiefel CJ, Keane and Gordon JJ) and [79] (Edelman and Steward JJ). There is therefore no arguable error in the primary judge holding that the Court lacked jurisdiction. To the contrary, his Honour was plainly correct. Furthermore, while strictly unnecessary for us to consider, we should also state that we agree completely with his Honour’s reasons for holding that the application was also an abuse of process.

29    Finally, insofar as the draft notice of appeal seeks to raise issues outside those the subject of his original application below, by way of grounds 5, 6 and 7, those grounds also have no prospects of success. We agree with and gratefully adopt the submissions of the respondent with respect to those grounds as follows:

Ground 5 concerns the order made by Griffiths J on 24 September 2019 that the name of the Respondent not be published and henceforth the Respondent be referred to by the pseudonym “RU”. Mr Quach has already made two applications for leave to appeal against that order, which have been refused: Quach v RU [2019] FCA 2041; Quach v RU [2023] FCA 1233 at [24]-[32].

Ground 6 appears to attack Rares J’s grant of leave to the Respondent to rely on her Amended Defence, on the basis that “there is no application for constitutional grounds.” It is unclear what is intended by that complaint. The Respondent filed an application to amend her Defence to raise, in paragraph 6, the contention that: “The Court lacks jurisdiction to determine the application, as there is no justiciable ‘mater’ within Chapter III of the Constitution.” Following service of the proposed Amended Defence, the Respondent issued s 78B notices and received responses from the various Attorneys General confirming that they did not wish to participate in the proceedings. Accordingly, there was no obstacle to the primary judge granting leave to the defendant to rely on the constitutional issue raised in her Amended Defence.

In any event, the decision to permit an amendment is a discretionary case management decision. There is no conceivable appellable error (of the House v R kind) from the decision to grant the Respondent leave to amend her Defence, in circumstances where the additional contention the subject of the amendment was purely a legal contention and the form of the draft Amended Defence was provided to the Applicant in November 2019.

Ground 7 proceeds on a false premise: the HCCC was not a party to the proceedings below. The only party to the proceedings were the Applicant and the Respondent.

(Emphasis omitted.)

30    In addition, similar to ground 5, ground 6 was the subject of the separate application for leave and extension of time in ACD 93/2019. That application has been dismissed in Quach v RU [2023] FCA 1233 on the grounds that it lacked any merit.

6.    CONCLUSION

31    For the reasons set out above, the application for an extension of time is refused with costs.

Associate:

Dated:    12 March 2024