Federal Court of Australia

Quach v Marks [2022] FCA 511

ORDERS

THE COURT ORDERS THAT:

1.    The Attorney-General for New South Wales be joined as a respondent in ACD 25 of 2021 and ACD 57 of 2021.

2.    In ACD 25 of 2021, the applicant file and serve any further affidavit on which he seeks to rely, a draft notice of appeal, and a written outline of submissions not exceeding 5 pages, in support of his application to extend time and for leave to appeal, by 4.00 pm on 1 June 2022.

3.    In ACD 57 of 2021, the applicant file and serve any further affidavit on which he seeks to rely, a draft notice of appeal, and a written outline of submissions not exceeding 5 pages, in support of his application for leave to appeal, by 4.00 pm on 1 June 2022.

4.    In ACD 25 of 2021, the Attorney-General for New South Wales file and serve any further affidavit on which he seeks to rely, and a written outline of submissions in answer not exceeding 5 pages, by 4.00 pm on 22 June 2022.

5.    In ACD 57 of 2021, the Attorney-General for New South Wales file and serve any further affidavit on which he seeks to rely, and a written outline of submissions in answer not exceeding 5 pages, by 4.00 pm on 22 June 2022.

6.    With respect to any affidavit or submissions in reply in ACD 25 of 2021, the applicant file and serve such affidavit, or a written outline of such submissions not exceeding 3 pages, by 4.00 pm on 6 July 2022.

7.    With respect to any affidavit or submissions in reply in ACD 57 of 2021, the applicant file and serve such affidavit, or a written outline of such submissions not exceeding 3 pages, by 4.00 pm on 6 July 2022.

8.    The application to extend time and for leave to appeal in ACD 25 of 2021, and the application for leave to appeal in ACD 57 of 2021, be listed for hearing on a date to be fixed.

9.    The applicant pay the costs of the Attorney-General for New South Wales in respect of the first interlocutory application and the second interlocutory application referred to in the reasons for judgment published today.

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

REASONS FOR JUDGMENT

YATES J:

1    These reasons concern two interlocutory applications filed by the Attorney-General for New South Wales (the Attorney-General) in separate proceedings in the Court’s appellate jurisdiction—ACD 25 of 2021 and ACD 57 of 2021.

2    On 31 March 2021, in proceeding ACD 44 of 2020, Abraham J made an order that the Attorney-General be granted leave to intervene in that proceeding, pursuant to r 9.12 of the Federal Court Rules 2011 (Cth) (the Federal Court Rules): Quach v Marks [2021] FCA 335.

3    On 21 April 2021, the applicant filed an application for extension of time and leave to appeal from that judgment: ACD 25 of 2021. The applicant did not join the Attorney-General as a party to that proceeding, even though the application challenged the status of the Attorney-General to appear in ACD 44 of 2020 in accordance with the order made on 31 March 2021. On 20 July 2021, the Attorney-General filed an interlocutory application, seeking to be joined as a party (respondent) in ACD 25 of 2021. This is the first interlocutory application to which these reasons relate.

4    On 10 August 2021, Abraham J set aside the originating application in proceeding ACD 44 of 2020. It is clear that, by making that order, her Honour summarily dismissed the proceeding: Quach v Marks (No 2) [2021] FCA 922 at [9].

5    On 23 August 2021, the applicant filed an application for leave to appeal from that judgment: ACD 57 of 2021. In filing that application, the applicant did not join the Attorney-General as a party, even though the application for summary dismissal was granted on the Attorney-General’s application (leave having been granted to intervene), and a costs order had been made in the Attorney-General’s favour. On 1 October 2021, the Attorney-General filed an interlocutory application in that proceeding, seeking to be joined as a party (respondent) in ACD 57 of 2021. This is the second interlocutory application to which these reasons relate.

6    The second interlocutory application was filed pursuant to orders made by Registrar Priestley on 28 September 2021 in both ACD 25 of 2021 and ACD 57 of 2021. Registrar Priestley also noted that ACD 25 of 2021 and ACD 57 of 2021 be listed for hearing at the same time, and made orders that the two interlocutory applications be determined, in Chambers, on the basis of written submissions ordered to be filed by the applicant and the Attorney-General. Written submissions were filed by the Attorney-General on 8 October 2021. Written submissions were filed by the applicant on 22 October 2021.

7    The applicant opposes both interlocutory applications. His written submissions, filed in support of that opposition, are difficult to comprehend. His main grounds of opposition appear to be, in summary:

(a)    ACD 25 of 2021 and ACD 57 of 2021 are “private” proceedings in respect of which the Attorney-General cannot establish the “jurisdictional fact” that would entitle him to be joined as a party to each proceeding.

(b)    The Attorney-General “does not have a ‘source of power’ to seek costs”.

(c)    The appeals which the applicant seeks to bring “go behind” the primary judge’s decisions and it would be inappropriate, for this reason, to join the Attorney-General as a party to each proceeding.

(d)    Section 38(b) of the Judiciary Act 1903 (Cth) denies the Court any power to join the Attorney-General as a party to each proceeding.

(e)    There is no evidence to support the Attorney-General’s joinder as a party to each proceeding.

(f)    Joinder of the Attorney-General as a party to each proceeding would be a “pre-judgment” of that proceeding.

8    I reject each of those contentions. None of them provides a sound basis for concluding that the Court does not have the power to make the joinder orders that are sought. None of them stands as a reason for not making joinder orders in the present case.

9    I commence by observing that, in exercising its appellate jurisdiction, the Court can make such order as, in all the circumstances, it thinks fit: s 28(1)(b) of the Federal Court of Australia Act 1976 (Cth). Further, in exercising its original and appellate jurisdiction, the Court may make any procedural orders that it considers appropriate in the interests of justice: r 1.32 of the Federal Court Rules.

10    In each proceeding, the Attorney-General has a clear interest in maintaining the Court’s judgment, as given by the primary judge in exercising the Court’s original jurisdiction. Mr Marks, the respondent in ACD 44 of 2020 (the proceeding below), played no active role in that proceeding. Although Mr Marks has been joined as a respondent in ACD 25 of 2021 and ACD 57 of 2021, he has filed a submitting appearance (save as to costs) in each proceeding.

11    The Attorney-General is directly affected by the relief that the applicant seeks in each proceeding. An order which directly affects a third person’s rights against a party should not be made unless the person is also joined as a party. If not joined, and the order is made, the order will be set aside: News Limited v Australian Rugby League Football Limited (1996) 64 FCR 410 at 523 – 525; Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 at 55 – 56.

12    As I have noted, summary judgment in ACD 44 of 2020 was granted on the Attorney-General’s application, leave to intervene having been granted. The Attorney-General also obtained an order for costs in his favour. If leave to appeal in ACD 57 of 2021 were to be granted, the Attorney-General would, obviously, be interested in maintaining the judgment under appeal, and would be a proper—indeed necessary—party to the appeal: r 36.31 of the Federal Court Rules. This interest extends to whether leave to appeal should be granted in the first place. In my view, it is clearly appropriate that the Attorney-General be joined as a respondent in ACD 57 of 2021.

13    Similarly, if time were to be extended for leave to appeal, and leave to appeal granted, in ACD 25 of 2021, the Attorney-General would, equally, be interested in maintaining the judgment under appeal, and would be a proper and necessary party to the appeal. His status as an intervener in ACD 44 of 2020 is under challenge. The Attorney-General’s interest extends to whether time should be extended, and whether leave to appeal should be granted. It is clearly appropriate, in those circumstances, that the Attorney-General be joined as a respondent in ACD 25 of 2021.

14    For these reasons, I will grant the relief sought in the first interlocutory application and the second interlocutory application. Contrary to the applicant’s contention, such joinder is not prejudgment of the questions to be decided in the two proceedings.

15    I will also make orders for the filing by the parties of written submissions in respect of the application to extend time and for leave to appeal in ACD 25 of 2021, and in respect of the application for leave to appeal in ACD 57 of 2021, with a view to then setting down each application for hearing.

16    The applicant is to pay the costs of the first interlocutory application and of the second interlocutory application.

Associate:

Dated:    10 May 2022