Federal Court of Australia

Quach v Marks (No 2) [2021] FCA 922

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s originating application, dated 26 August 2020, is set aside.

2.    The applicant is to pay the costs of the Intervener, to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J

1    In these proceedings, the applicant seeks relief in respect of decisions of the New South Wales Civil and Administrative Tribunal (NCAT) in Health Care Complaints Commission v Quach [2015] NSWCATOD 2 and Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32 (collectively, the NCAT decisions).

2    The respondent, the Honourable Francis Marks, is a principal member of NCAT and was a presiding member in the decisions about which the applicant complains.

3    The applicant, in his originating application, claims that:

(1)    Frank Marks made findings under the Health Insurance Act 1973 (Cth) without valid statutory authority, referring to Gedeon v Commissioner of NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120 (Gedeon), that commenced on 10 September 2014, and in the Health Care Complaints Commission v Quach [2015] NSWCATOD 2 and [2015] NSWCATOD 32; and

(2)    Frank Marks is guilty of dishonesty by ordering costs against the applicant in Health Care Complaints Commission v Quach [2015] NSWCATOD 2 and [2015] NSWCATOD 32, when he knew that he didn’t have the ability to order costs.

4    No relief is sought in the originating application. The statement of claim duplicates the claims in the originating application, but seeks the following relief:

(a)    compensatory damages;

(b)    interest; and

(c)    costs.

5    The respondent filed a submitting appearance in these proceedings on 1 December 2020.

6    On 31 March 2021, I granted leave to the Attorney General for New South Wales (the Attorney General) to intervene in these proceedings: Quach v Marks [2021] FCA 335.

7    On 15 April 2021, the Attorney General filed an interlocutory application seeking dismissal of these proceedings on alternative grounds: first, for want of jurisdiction pursuant r 13.01 of the Federal Court Rules 2011 (Cth); and second, in the alternative the proceedings should be summarily dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01 of the Federal Court Rules.

8    The applicant opposes the application.

9    For the reasons below the proceedings are dismissed.

Preliminary matter

10    The applicant made an application for me to recuse myself from hearing this matter on the basis of my decision in Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313. He submitted that the process in reaching the conclusion I did in respect to the summary dismissal and costs associated with the application involved “untruths”. The applicant labels as an untruth any conclusion, including as to the law, which is inconsistent with his submission. That is, by failing to accept his submission the judgment contains untruths. The submission is based on no more than the fact he disagrees with the decision. I note the decision provides reasons for the conclusions reached.

11    A judge has an obligation to sit unless a reasonable apprehension of bias can be established: In Re J.R.L; Ex parte C.J.L [1986] HCA 39; (1986) 161 CLR 342 (In Re JRL) at 352 per Mason J. A conclusion of apprehended bias “is not to be reached lightly”: see CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [56] citing In Re JRL at 371; and see GetSwift Ltd v Webb [2021] FCAFC 26 at [28].

12    The test for determining whether a judge should disqualify themselves by reason of apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 (Johnson v Johnson) at [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, affirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner) at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ, and applied in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427. The rule involves two steps: first, identification of the factor which it is said might lead the judge to decide the case otherwise than on its legal and factual merits; and, second, an articulation of the logical connection between that factor and the feared deviation from the course of deciding the case impartially on the merits: Ebner at [8].

13    The fair-minded lay observer, is amongst other things:

(1)    taken to be reasonable: Johnson v Johnson at [12] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ;

(2)    does not make snap judgments: Johnson v Johnson at [12];

(3)    knows commonplace things and is neither complacent nor unduly sensitive or suspicious: Johnson v Johnson at [53] per Kirby J;

(4)    has knowledge of all the circumstances of the case: Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294 per Mason, Murphy, Brennan, Deane and Dawson JJ; In Re JRL at 355 per Mason J, 359 per Wilson J, 368 per Brennan J and 371-372 per Dawson J; and

(5)    is an informed one, that is, they will have regard to the fact that a judicial officer’s training, tradition and oath or affirmation equip the officer with the ability to discard the irrelevant, the immaterial and the prejudicial: see GetSwift v Webb at [35].

Against that background, judges are expected to decide factual contests on the evidence: Johnson v Johnson at [12] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

14    Recently, in Frugtniet v Secretary, Department of Social Services [2021] FCAFC 127 at [10], O’Callaghan J relevantly adopted the following principles, as set out by the Court of Appeal of New South Wales (Court of Appeal of NSW) in Quach v New South Wales Civil and Administrative Tribunal [2020] NSWCA 214 at [4]-[7] per Gleeson, Leeming and McCallum JJA:

[4]    The test for apprehension of bias is objective. It does not require an assessment of the state of mind of the judge in question, as is necessary on an inquiry about actual bias. The test for recusal is whether a fair-minded lay person, with knowledge of the matters relied upon by the applicant, might reasonably consider that the respective members of the Court might not carry out their judicial functions as a member of the Court with an impartial and unprejudiced mind.

[5]    We are satisfied that such a person would not reach that conclusion based on the complaint made by Mr Quach that we have sat on other matters involving unsuccessful applications by Mr Quach. In none of these matters have we made findings adverse to Mr Quach’s credibility. Our involvement in them does not demonstrate an inability to deal fairly, according to law, with any additional application made by Mr Quach.

[6]    Mr Quach was unable to identify any logical connection between the dismissal of his previous applications to set aside the vexatious proceedings order and the issues that need to be determined on the present application, such that a fair-minded lay person might reasonably apprehend that the members of the Court might not bring an impartial and unprejudiced mind to the resolution of the questions for decision on the notice of motion.

[7]    We are mindful that it is our duty to determine matters which come before us as members of the Court and also that it is our duty not to withdraw unless there are reasons which require us to do so. As Mason J said in Re JRL; Ex parte CJL at 352:

Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

15    Applying the relevant principles, there is no proper basis for me to disqualify myself from hearing and determining this case. That a judge has made a previous decision on issues in a matter does not “mean either that [the judge] will approach the [other] issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that [the judge’s] previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that [the judge] will approach the issues in this way”: In Re JRL at 352 per Mason J; Doggett v Commonwealth Bank of Australia [2019] FCAFC 19 per Kerr, Davies and Thawley JJ at [11]. In relation to my decision in Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313, in my view the applicant has been unable to identify any logical connection between the previous dismissal in other proceedings and the issues that need to be determined in the present case, such that a fair minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the question that I am now required to decide. That I had previously ruled against the applicant, would not, in the circumstances, lead a fair-minded lay observer to apprehend that.

Factual Background

16    There have been a number of cases brought by the applicant against the NCAT decisions. The relevant litigation history was summarised by the Court of Appeal of NSW in Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267 at [2]-[8]:

[2]    A brief outline of the background to the show cause matters is as follows. Mr Quach was a medical practitioner. The subject matter of the proceedings before NCAT involved two notices of complaint lodged against Mr Quach by the Health Care Complaints Commission (the Commission), one in June 2013; the other in January 2014. The Notices of Complaint contained ten separate complaints against Mr Quach, including complaints of professional misconduct, impairment and a lack of sufficient mental capacity, knowledge and skill to practise as a health practitioner. There was a degree of procedural complexity because the dates of the two Notices of Complaint straddled the abolition of the Medical Tribunal of New South Wales and the establishment of NCAT on 1 January 2014. The first Notice of Complaint was lodged with the Medical Tribunal and the second with NCAT.

[3]    The proceedings before NCAT were dealt with in two stages: the first may be referred to as the disciplinary or Stage One proceeding; the second may be referred to as the protective orders or Stage Two proceeding.

[4]    Mr Quach and the Commission were both legally represented during the disciplinary proceeding. After the final day of argument on 19 December 2014, the Principal Member delivered an ex tempore judgment in which he specified the conditions to be imposed on Mr Quach’s licence on an interlocutory basis pending argument and decision in the Stage Two proceeding. On 9 January 2015, the matter was relisted (it appears at the request of the Commission) before the Principal Member, sitting alone. Mr Quach represented himself on that day. Following that hearing, the Principal Member amended the form of the interlocutory conditions.

[5]    On 5 February 2015, NCAT delivered its reasons in the disciplinary proceeding: Health Care Complaints Commission v Quach [2015] NSWCATOD 2 (Stage One decision). NCAT made findings that each of the ten complaints had been made out. NCAT also made two findings of professional misconduct within the meaning of Health Practitioner Regulation National Law 2009 (NSW) (National Law), s 139E and findings of “impairment” and lack of “competence” to practise by reason of that impairment under the National Law, ss 5 and 139: Stage One decision at [334], [335], [366], [367], [419], [420] and [422]. A Notice of Decision was issued by NCAT on 11 February 2015.

[6]    On 21 April 2015, NCAT delivered its reasons in the protective orders proceeding: Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32) (Stage Two decision). NCAT made orders cancelling Mr Quach’s registration as a medical practitioner, and precluding any application for review for a period of seven years, and prohibiting him from providing any health service on a public, private or volunteer basis.

[7]    Prior to NCAT’s Stage Two decision, Mr Quach commenced two proceedings in February 2015 by way of judicial review of NCAT’s Stage One decision, including the interlocutory orders made on 19 December 2014 and 9 January 2015. Those proceedings were unsuccessful: Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63 (Quach v NCAT (No 1)). In May 2015, Mr Quach commenced a further proceeding by way of judicial review of NCAT’s Stage One decision and Stage Two decision. That proceeding was also unsuccessful: Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10 (Quach (No 1)).

[8]    Not being satisfied with the decisions of this Court rejecting his judicial review applications, Mr Quach sought to re-agitate his contentions by making numerous further applications by way of notice of motion in this Court. Each of those further applications was unsuccessful. The nature of those applications are summarised below.

See also [45]-[104] which provides greater detail of the history of the proceedings.

17    Since that decision there has been a number of further attempts by the applicant to litigate these proceedings in the Supreme Court of New South Wales (Supreme Court of NSW) and Court of Appeal of NSW, which are unnecessary to traverse here.

Evidence

18    In support of the application, the Attorney General read an affidavit of Kyle Hudson, an employed solicitor who had carriage of the matter, affirmed on 15 April 2021. The applicant opposed the affidavit being read, and contended that the decisions of NCAT attached thereto were not admissible to establish that Mr Marks was qualified to sit on NCAT, citing s 91 of the Evidence Act 1995 (Cth). However, as the Intervener submitted, the evidence was not relied on for that purpose, only to demonstrate what had occurred. I admitted the affidavit.

19    The applicant relied on an affidavit dated 26 August 2020, which was read without objection.

Consideration

20    Before addressing the basis of the application it is appropriate to make some observations.

21    First, to state the obvious, the claim relates to the appointment of a member to NCAT, a New South Wales Tribunal, established under the Civil and Administrative Tribunal Act 2013 (NSW).

22    Second, a party may challenge an error by NCAT by an appeal to NCAT’s Appeal Panel and thence an appeal to the Supreme Court of NSW (or alternatively by an application for judicial review to the Supreme Court of NSW). As apparent from the recitation of the history above, the applicant has repeatedly challenged the NCAT decisions and each application has been rejected.

23    Third, importantly, these challenges have included that Mr Marks was not validly appointed to NCAT. That challenge has been rejected: Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10 at [23]-[33].

24    Fourth, neither of the challenged NCAT decisions refers to the Health Insurance Act 1973 (Cth). There are no findings under that Act, but rather the findings of unsatisfactory professional conduct and professional misconduct (and the underlying findings) were made under the Health Practitioner Regulation National Law 2009 (NSW).

25    Against that background I turn to the application.

Dismissal for want of jurisdiction

26    The Intervener contends that “Ground 1” of the applicant’s originating application is the only ground which even arguably invokes federal jurisdiction, but that the claim concerns the authority of NCAT, relevantly constituted by members including the Honourable Francis Marks, to make orders pursuant to the Civil and Administrative Tribunal Act which is a matter which does not engage federal jurisdiction. A party may challenge an error by NCAT by an appeal to NCAT’s Appeal Panel and thence an appeal to the Supreme Court of NSW (or alternatively by an application for judicial review to the Supreme Court of NSW). The Intervener referred to s 19(1) of the FCA Act, and to Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1 (Rana) at [15]-[22] as to the scope and operation of federal jurisdiction. Reference was also made to Qantas Airways Ltd v Lustig [2015] FCA 253; (2015) 228 FCR 148 (Lustig) at [88]. The Intervener submitted that the impugned NCAT decisions did not make findings under the Health Insurance Act. Nor does the claim rely on an asserted cause of action created by the Health Insurance Act. It was submitted that “[a]t the absolute highest, the Applicant’s claim merely involves the interpretation of a federal law, a matter which on its own does not attract federal jurisdiction: see Rana at [18], citing Felton v Mulligan (1971) 124 CLR 367 at 374, 408-409, 416”.

27    The Intervener submitted the Court:

…should have little difficulty in concluding that the Applicant’s claim is colourable in the sense that it is made for “the improper purpose of ‘fabricating’ jurisdiction”. The Court can be fortified in concluding that the claim has invoked the Health Insurance Act for the improper purpose of fabricating federal jurisdiction, because the Applicant has exhausted his means of challenging NCAT’s decisions in the NSW court system, and indeed has been declared a vexatious litigant in respect of those and earlier proceedings, which has the effect of imposing a requirement for leave before he can initiate any further proceedings of that nature in the NSW court system.

28    The Intervener’s submission must be accepted.

29    In Rana at [15]-[22], the Court relevantly summarised the scope of federal jurisdiction as follows (emphasis in original):

Principles of federal jurisdiction and the jurisdiction of this Court

[15]    The jurisdiction exercised by the Federal Court is always federal jurisdiction: Re Wakim; Ex parte McNally (1999) 198 CLR 511. The content of that jurisdiction exercised by this Court is derived from ss 75 and 76 of the Constitution of the Commonwealth (the Constitution), and that jurisdiction is defined by laws that are authorised by s 77(i) of the Constitution. Section 19 of the Federal Court of Australia Act provides that the Federal Court “has such original jurisdiction as is vested in it by laws made by the Parliament”. Leaving to one side specific conferrals of jurisdiction on the Court by individual Acts of the Commonwealth Parliament, by s 39B(1A)(c) of the Judiciary Act 1903 (Cth), Parliament has conferred upon the Court a general federal civil jurisdiction, being “jurisdiction in any matter … arising under any laws made by the Parliament”.

[16]    Crucial to the scope and operation of federal jurisdiction, to the question whether a proceeding is within federal jurisdiction and to the question whether a proceeding is within the jurisdiction of this Court, is the concept of a “matter”. In Re Wakim, Gummow and Hayne JJ at [139]-[140] described a “matter”, and the process of its identification, as follows:

[139]    The central task is to identify the justiciable controversy. In civil proceedings that will ordinarily require close attention to the pleadings (if any) and to the factual basis of each claim.

[140]     In Fencott it was said that: “in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.” The references to “impression” and “practical judgment” cannot be understood, however, as stating a test that is to be applied. Considerations of impression and practical judgment are relevant because the question of jurisdiction usually arises before evidence is adduced and often before the pleadings are complete. Necessarily, then, the question will have to be decided on limited information. But the question is not at large. What is a single controversy “depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships”. There is but a single matter if different claims arise out of “common transactions and facts” or “a common substratum of facts”, notwithstanding that the facts upon which the claims depend “do not wholly coincide”. So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other, as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Conversely, claims which are “completely disparate”, “completely separate and distinct” or “distinct and unrelated” are not part of the same matter.

(Citations omitted and emphasis added.)

[17]    The “matter” is the justiciable controversy between the parties arising out of the substratum of facts and claims representing, or amounting to, the dispute or controversy between or amongst the parties. Where federal and non-federal claims comprise the same justiciable controversy, a court exercising federal jurisdiction will have jurisdiction to resolve the entire matter in the exercise of its federal jurisdiction. The non-federal part of the matter is sometimes referred to as “accrued jurisdiction” (as distinct from the associated jurisdiction provided for under s 32 of the Federal Court of Australia Act). It is better understood and expressed, however, as being part of the one matter. References to “accrued jurisdiction” need to be treated with caution or, indeed, to be avoided: see Rizeq v Western Australia (2017) 91 ALJR 707; 344 ALR 421 at [55] per Bell, Gageler, Keane, Nettle and Gordon JJ. (It should also be noted at this point that no issue concerning s 79 of the Judiciary Act arises in this case.)

[18]    A matter will “arise under” a law of the Parliament in a number of ways. These include cases where a cause of action is created by a Commonwealth statute; where a Commonwealth statute is relied upon as establishing a right to be vindicated; where a Commonwealth statute is the source of a defence that is asserted; where the subject matter of the controversy owes its existence to Commonwealth legislation — that is where the claim is in respect of or over a right which owes its existence to federal law; where it is necessary to decide whether a right or duty based on a Commonwealth statute exists even where that has not been pleaded by the parties, or where a federal issue is raised on the pleadings but it is unnecessary to decide: see generally R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154; Felton v Mulligan (1971) 124 CLR 367 at 374, 388, 403; Moorgate Tobacco Company Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 476; LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581-582; Re McJannet; Ex parte Australian Workers’ Union of Employees (Qld) (No 2) (1997) 189 CLR 654 at 656-657; CGU Insurance Ltd v Blakeley (2016) 259 CLR 339; Australian Solar Mesh Sales Pty Ltd v Anderson (2000) 101 FCR 1 at 7-8. A matter may also exist prior to the commencement of formal proceedings and be federal in character at that point: Hooper v Kirella Pty Ltd (1999) 96 FCR 1 at [45]-[55]. There is a difference, however, between a matter “arising under” a law of the Parliament and a matter that merely involves the interpretation of a federal law (and which will not on its own attract federal jurisdiction): see Felton at 374, 408-409, 416.

[19]    The Court (French CJ, Kiefel, Bell and Keane JJ) said the following in CGU at [30]-[31] in discussing federal jurisdiction:

[30]    The justiciability requirement encompassed in the concept of “matter” appears in the description of that term by the majority in Fencott v Muller as “a justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy”. It has an evaluative element as also appears from the majority judgment in Fencott:

What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out.

The evaluative element is illustrated by, but not confined to, the delineation of the so called “accrued jurisdiction” to entertain non-federal claims in federal jurisdiction, by their Honours’ observation that it is:

a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.

[31]    The existence of jurisdiction is anterior to the existence of the power to grant particular relief. As Gleeson CJ and McHugh J said in MIMIA v B:

In a legal context the primary meaning of jurisdiction is “authority to decide”. It is to be distinguished from the powers that a court may use in the exercise of its jurisdiction

(footnotes omitted)

The distinction has been made frequently in this court.

(Citations omitted.)

[20]    Once a matter is within federal jurisdiction, the entire matter is within federal jurisdiction: Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at [7] per Gleeson CJ, Gaudron and Gummow JJ. There is never any concurrent exercise of federal and State jurisdiction: Felton at 412-413; Moorgate at 471.

[21]    Generally, non-colourable assertion of a federal issue is enough to attract federal jurisdiction: Felton at 374 per Barwick CJ; Moorgate at 476; Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219; Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 389-391 per Dixon J. Upon the existence of federal jurisdiction, the matter remains within federal jurisdiction regardless of how the federal issue or issues within it are ultimately resolved: Moorgate at 476. It remains federal even if the federal claim is struck out: Unilan Holdings Pty Ltd v Kerin (1993) 44 FCR 481 at 481-482. Nor does dismissal of the federal claim mean that a court exercising federal jurisdiction somehow loses jurisdiction over the balance of the matter: Burgundy Royale at 219; Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564 at [85] per French J. The same is true if the federal claim is effectively abandoned: see Moorgate. Indeed, a matter remains in federal jurisdiction even if a party is added and no federal claim is made against that party, provided it is all part of the same matter, the same controversy: Re Wakim at [145] per Gummow and Hayne JJ. The position is summarised in Macteldir Pty Ltd v Dimovski (2005) 226 ALR 773 at [36] as follows:

It is a fundamental tenet of federal jurisdiction that once a federal claim is made, even a bad one, and even one that is abandoned, or struck out, the whole matter in which that claim is made is, and remains, federal jurisdiction …

(Citations omitted.)

[22]    The exception to this principle is where the federal claim that is made is “colourable” in the sense that it was “made for the improper purpose of fabricating jurisdiction” such that it was not made bona fide. In such a case, federal jurisdiction is not attracted: Burgundy Royale at 219. .

30    In Lustig at [88], Perry J observed in relation to what constitutes a “colourable” federal claim, as follows:

[88]    The raising of a federal claim will ordinarily give rise to a federal matter unless it is colourable in the sense that it is made for “the improper purpose of ‘fabricating’ jurisdiction”: Burgundy Royale at 219 (the Court). The question, therefore, of whether a claim is tenable will be relevant to that question but not determinative save (rarely) where a claim is so obviously untenable, and would have been so to those who propounded it, that the claim is found to be colourable: Cook v Pasminco Ltd (2000) 99 FCR 548 at [14] and [16] (Lindgren J); Ahmed v Harbour Radio Pty Ltd (2009) 180 FCR 313 at [58]-[64] (Foster J). For example, in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 (Johnson Tiles), French J (with whose reasons Beaumont and Finkelstein JJ agreed) explained at [88] that:

In the ordinary course the contention that a claim is not tenable will not go to jurisdiction unless dependent upon a submission that the claim is outside jurisdiction. And indeed, within that class a claim may be untenable because its very nature denies its character as an element of any matter or controversy in respect of which the Court can exercise jurisdiction. So a proceeding based upon the proposition that the Commonwealth Constitution is invalid does not disclose a matter arising under the Constitution or involving its interpretation — Nikolic v MGICA Ltd [1999] FCA 849. A claim may also be a sham reflecting no genuine controversy and therefore establishing no matter in respect of which the Court may exercise its jurisdiction. There has been discussion of so called “colourable” claims made under the Trade Practices Act for the improper purpose of fabricating jurisdiction. The mere fact that a claim is struck out as untenable does not mean it is colourable in that sense.

31    Her Honour’s reasons at [88] in v Lustig were cited with approval in Page v Sydney Seaplanes Pty Ltd [2020] FCA 537; (2020) 277 FCR 658 at [28].

32    The applicant’s written submission opposing the application does not address the submission as to jurisdiction. It was in the following terms:

[2]    In my respectful submission, it is an untruth that the Respondent, Mr Frank Marks, is qualified to:

(i)    make determination in the Health Insurance Act 1973 (Cth), because the NSW Civil and Administrative Tribunal does not [sic] such allocated function.

(ii)    hear and determine the matter of Health Care Complaints Commission v Quach [2015] NSWCATOD 2 and [2015] NSWCATOD 32, because Mr Marks was not a term member on 10 September 2014.

[3]    These untruths are advertised, by way of publication in Health Care Complaints Commission v Quach [2015] NSWCATOD 2 and [2015] NSWCATOD 32, which Mr Marks had order costs to win money.

[4]    Mr Mark’s misconduct is consistent with the ritual that corresponds to the Vietnamese saying,

Nói láo, quảng cáo, ăn tiền.

Translated colloquial meaning: to lie, to advertise is to win money.

Translated legal meaning: untruth, publication, is to win money.

[5]    Mr Frank Marks has acted dishonestly to order costs, without necessary statutory authority, to win money. This matter, ACD 44/2020 Quach v Marks, is a criminal proceeding.

[6]    Pursuant to the Section 31A(5) of the Federal Court Act 1976 (Cth), Summary judgement,

(5) This section does not apply to criminal proceedings.

With respect, the Federal Court does not have the necessary statutory authority to summarily dismiss this matter, ACD 44/2020 Quach v Marks.

33    As can be seen, the submission merely repeats, without expansion as to the basis, the assertion that the determination was made under the Health Insurance Act.

34    The applicant’s oral submission also did not address the issue of jurisdiction except to assert that the Health Insurance Act applied, and that the suggestion of the Intervener to the contrary was an untruth. His oral submission focussed on the submission that his claims were criminal proceedings, as these are serious Commonwealth offences, and he is bringing a prosecution pursuant to the Crimes Act 1914 (Cth), and this Court cannot summarily dismiss criminal proceedings. The applicant submitted this related to both of his claims.

35    Neither the applicant’s originating application nor his statement of claim indicate any basis upon which this Court may have jurisdiction in relation to his claims. This Court has no jurisdiction conferred on it to review a decision of NCAT, or decide any matter concerning the constitution or conduct of its members.

36    The context in which these proceedings have been brought is outlined above. This relevantly includes that neither of the challenged NCAT decisions refers to the Health Insurance Act and nor were any findings made under that Act. Rather, NCAT’s findings of unsatisfactory professional conduct and professional misconduct were made under the Health Practitioner Regulation National Law. In particular, the issue of overcharging considered by NCAT, which appears from this hearing to be the basis of the applicant’s first claim in his originating application, relates to the level of charge imposed by the respondent on AS (a former patient of the applicant), and the circumstances in which they were raised: see for example, Health Care Complaints Commission v Quach [2015] NSWCATOD 2 at [260]. The complaints considered by NCAT did not relate to the alleged overcharging to Medicare and indeed, NCAT declined to make any finding in relation to Medicare legislation and instead directed that the Registrar refer the matter to Medicare for further investigation: Health Care Complaints Commission v Quach [2015] NSWCATOD 2 at [126]. In any event, at best, such a claim merely involves the interpretation of a federal law, a matter which on its own does not attract federal jurisdiction: see Rana at [18], citing Felton v Mulligan (1971) 124 CLR 367 at 374, 408-409, 416.

37    In summary, the applicant’s claims do not arise under any federal law, they do not rely on any cause of action created by the Health Insurance Act, and it is not necessary for the claim to decide whether a right or duty based on a Commonwealth statute exists: Rana at [18].

38    These claims are also made in the context where, as the Intervener contended, the applicant has exhausted his means of challenging NCAT’s decisions in the NSW court system, and indeed has been declared a vexatious litigant in respect of those and earlier proceedings, such that the applicant must obtain leave before he can initiate any further proceedings of that nature in the NSW court system: Quach v New South Wales Health Care Complaints Commission [2017] NSWCA 267 at [130].

39    In light of these circumstances, I am satisfied that the applicant’s claims constitute a “colourable” federal claim. The raising of a federal claim is made for “the improper purpose of ‘fabricating’ jurisdiction”: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219.

Summary dismissal

40    This argument was advanced in the alternative. Although not strictly necessary to consider, in my view, if there had been jurisdiction, this is a matter which would be summarily dismissed. There are no reasonable prospects of success. The proceedings are vexatious. No reasonable cause of action is disclosed. As noted above, the issue of the validity of the appointment of Mr Marks to NCAT has been the subject of challenge which has been rejected. On the applicant’s submissions, the allegations made in respect to Mr Marks appear to be on the same basis as previously advanced. The applicant appears to seek to re-agitate the same complaint as previously made in the New South Wales courts. I note also as an aside that in relation to the second claim, the applicant’s complaint is premised on the basis that NCAT does not have ability to order costs, although the Civil and Administrative Tribunal Act provides the power to do so in special circumstances: s 60.

41    The applicant’s contention that his claims, including that Mr Marks acted dishonestly, are a criminal proceeding and not subject to summary dismissal, is misconceived. The applicant has brought civil proceedings, instituting them by an originating application and is seeking relief, including damages, as set out in his statement of claim. They do not fall within the definition of criminal proceedings for the purposes of the FCA Act: Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313 at [36]. I note that this Court does not have a general criminal jurisdiction, and although it does have such jurisdiction in respect to some matters, it is limited. In any event, contrary to the applicant’s submission, he does not have authority to bring criminal proceedings in relation to an indictable offence in the Federal Court: Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313 at [36]-[40].

Conclusion

42    The application that the proceedings be dismissed for want of jurisdiction is granted. If I had not so concluded, the proceedings would have been summarily dismissed. The applicant is to pay the Intervener’s costs to be agreed or assessed.

Associate:

Dated:    10 August 2021