Federal Court of Australia

Quach v Marks (No 2) [2022] FCA 1335

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal in ACD 25 of 2021 be dismissed.

2.    The application for leave to appeal in ACD 57 of 2021 be dismissed.

3.    The applicant pay the costs of the Attorney General for New South Wales of and incidental to each application.

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

REASONS FOR JUDGMENT

YATES J:

Introduction

1    There are two applications for leave to appeal presently before the Court, one of which requires an extension of time. Both applications arise out of judgments given in proceeding ACD 44 of 2020.

2    In proceeding ACD 44 of 2020, the present applicant, Michael Van Thanh Quach, sought 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 (the NCAT decisions). The respondent in proceeding ACD 44 of 2020 was the Honourable Francis Marks, a principal member of NCAT and the presiding member in respect of the NCAT decisions.

3    In his originating application, the applicant claimed that:

(1)    Mr Marks made findings under the Health Insurance Act 1973 (Cth) (Health Insurance Act) without valid statutory authority; and that

(2)     Mr Marks was guilty of dishonesty by ordering costs against him in the NCAT decisions, when Mr Marks knew that he did not have the ability to order costs.

4    The applicant did not seek relief in the originating application but, in his statement of claim, he claimed compensatory damages, interest, and costs.

5    On 1 December 2020, Mr Marks filed a submitting appearance.

6    On 31 March 2021, the primary judge granted leave to the Attorney General for New South Wales (the Attorney General) to intervene in the proceeding: Quach v Marks [2021] FCA 335 (the first judgment). In arriving at that decision, the primary judge noted the power conferred by r 9.12 of the Federal Court Rules 2011 (Cth) (the Rules) with respect to the appointment of interveners and reasoned that, without the Attorney General’s intervention, there would be no contradictor (the respondent, Mr Marks, having filed a submitting appearance). Her Honour said (at J[11] – [13]):

11    ... There is a need for an effective contradictor in these proceedings where allegations are made against a member of NCAT, with the allegations referring to matters relating to the performance of his duty. In my view, the Court will be assisted by an intervener as a party who would put alternative arguments to those of the applicant.

12    The Attorney General is plainly the appropriate person given his position of responsibility in respect of NCAT. An example of such intervention in like circumstances is Markisic v Magistrate Heilpern [2011] NSWSC 410 and the cases cited therein.

13    I am satisfied that the appropriate order is that the Attorney General be granted leave to appear as an intervener in these proceedings.

7    On 21 April 2021, the applicant filed an application for an extension of time and leave to appeal from the first judgment: proceeding ACD 25 of 2021.

8    On 15 April 2021, the Attorney General filed an interlocutory application seeking dismissal of proceeding ACD 44 of 2020 on alternative bases: first, the proceeding failed for want of jurisdiction (in reliance on the power in r 13.01 of the Rules to set aside an originating application); secondly, the proceeding should be summarily dismissed (in reliance on the power in s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Rules).

9    On 10 August 2021, the primary judge 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] (the second judgment).

10    On 23 August 2021, the applicant filed an application for leave to appeal from that judgment: proceeding ACD 57 of 2021.

11    On 28 September 2021, a Registrar of the Court made an order that the two applications for leave to appeal be listed for hearing at the same time.

12    On 10 May 2022, over the applicant’s objection, I made an order that the Attorney General be joined as a respondent in proceedings ACD 25 of 2021 and ACD 57 of 2021. I also made other procedural orders, including that the parties file written outline of submissions in relation to the two applications for leave to appeal: Quach v Marks [2022] FCA 511.

Background

13    There have been a number of cases brought by the applicant in respect of the NCAT decisions. The relevant history is summarised 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.

14    The primary judge recorded that, since the decision in [2017] NSWCA 267, there had been a number of further attempts by the applicant to litigate the NCAT decisions in the Supreme Court of New South Wales and the Court of Appeal of New South Wales.

The primary judge’s reasons: second judgment

15    In commencing her consideration of the Attorney General’s interlocutory application, the primary judge noted the following preliminary matters.

16    First, the applicant’s claim related to the appointment of a member of NCAT, which was a New South Wales tribunal established under the Civil and Administrative Tribunal Act 2013 (NSW).

17    Secondly, a party may challenge a decision by NCAT by an appeal to NCAT’s Appeal Panel and then by appeal to the Supreme Court of New South Wales, or can seek judicial review of an NCAT decision in the Supreme Court of New South Wales. The primary judge noted that the applicant had repeatedly challenged the NCAT decisions, with each challenge having been rejected.

18    Thirdly, the proceeding before her included the allegation that the respondent (Mr Marks) had not been validly appointed to NCAT. That challenge, however, had already been rejected in Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10 at [23] – [33].

19    Fourthly, the NCAT decisions did not involve any findings under the Health Insurance Act but, rather, findings of unsatisfactory professional conduct and professional misconduct under the Health Practitioner Regulation National Law 2009 (NSW).

20    After considering the scope and operation of federal jurisdiction (with reference to Rana v Google Inc [2017] FCAFC 156; 254 FCR 1 (Rana) at [15] – [22] and Qantas Airways Ltd v Lustig [2015] FCA 253; 228 FCR 148 at [88]), the primary judge concluded that neither the applicant’s originating application nor his statement of claim indicated any basis upon which the Court may have jurisdiction in relation to his claims. The primary judge noted in particular (at J[35]) that this Court has no jurisdiction to review a decision of NCAT or to decide any matter concerning the constitution or conduct of its members. At J[37] – [39], the primary judge held:

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.

21    In reaching this decision, the primary judge accepted the first basis on which the Attorney General had advanced his interlocutory application. In those circumstances, it was not necessary for the primary judge to consider whether, if there had been jurisdiction, proceeding ACD 44 of 2020 should be summarily dismissed. Nevertheless, the primary judge gave consideration to that matter and concluded that, assuming jurisdiction existed, the proceeding had no reasonable prospects of success. The primary judge said:

40     ... 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].

22    The primary judge dismissed the proceeding and ordered the applicant to pay the Attorney General’s costs as agreed or assessed.

The application for leave to appeal from the second judgment

23    It is convenient to deal, firstly, with the application for leave to appeal from the second judgment.

24    The draft notice of appeal contains the following ground:

1. Pursuant to Section 91 of the Evidence Act,

“91 Exclusion of evidence of judgments and convictions

(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose”.

Federal Court Rule 26.01(1) and (2)(b), cannot be satisfied by relying on judgements in an Australian or overseas proceeding. Therefore, the Affidavit of Kyle Hudson 15 April 2021 is not admissible because it relies on Australian and overseas proceedings to prove Federal Court rule 26.01(1) and (2)(b), “the facts and circumstances relied on to support those grounds” for summary dismissal.

(Errors in original.)

25    The reference, in this ground, to the affidavit of Kyle Hudson is to an affidavit that was read in support of the Attorney General’s interlocutory application. Amongst other documents, the affidavit annexed copies of the NCAT decisions. The applicant opposed the affidavit being read on the basis that, by reason of s 91 of the Evidence Act 1995 (Cth), the NCAT decisions were not admissible to prove that Mr Marks was qualified to sit on NCAT.

26    Section 91 provides:

(1)     Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

(2)     Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

Note: Section 178 (Convictions, acquittals and other judicial proceedings) provides for certificate evidence of decisions.

27    The primary judge rejected the applicant’s objection on the basis that s 91 was not engaged; the tender of the NCAT decisions was not for the purpose of proving that Mr Marks was qualified to sit on NCAT.

28    In his written outline of submissions, the applicant addresses this ground as follows:

The decision of Mr Frank Marks in Health Care Complaints Commission v Michael Van Thanh Quach [2015] NSWCATOD 2 is not admissible as evidence of a fact for the purposes of summary dismissal.

29    The applicant did not provide, as a matter of substance, any greater elaboration of this proposed ground in oral argument other than to refer to the fact that, in the proceeding below, the Attorney General made the following submission, based on Mr Hudson’s affidavit, which the primary judge subsequently accepted:

… 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.

(Footnote omitted.)

30    The proposed ground does not raise a viable ground of appeal. It misunderstands s 91 and the basis on which the NCAT decisions were tendered through Mr Hudson’s affidavit. The NCAT decisions were tendered to establish the issue that was before NCAT, and the outcome of NCAT’s deliberations on that issue. By this means, the Attorney General sought to demonstrate that, taken with other considerations, the applicant was seeking to re-agitate, in proceeding ACD 44 of 2020, the same complaints he had previously agitated, unsuccessfully, in the New South Wales court system, including the validity of Mr Marks’ appointment as a member of NCAT. This evidence was directed to supporting the Attorney General’s contention that the applicant’s claim in proceeding ACD 44 of 2020 was based on a colourable assertion of federal jurisdiction and, further, that the proceeding was an abuse of process. Mr Hudson’s affidavit was not read—and the NCAT decisions were not tendered—to prove the existence of a fact that was in issue in the NCAT proceeding.

31    Further, and importantly, the applicant’s present application does not grapple with the fundamental basis on which the primary judge dismissed proceeding ACD 44 of 2020—namely, that the jurisdiction of the Court was not engaged. In the course of oral argument in the present application, the applicant persisted with the contention that Mr Marks had not been validly appointed to NCAT. He also contended, with reference to [222] of [2015] NSWCATOD 2, that NCAT had made a decision under the Health Insurance Act. That contention is not correct.

32    Paragraph [222] of NCAT’s decision records that, in connection with a consultation with patient AS on 15 July 2011, the applicant raised a charge to Medicare. However, the recording of that fact does not constitute a decision by NCAT under the Health Insurance Act. Indeed, at [126] of its decision, NCAT was at pains to stress that, in the proceeding before it, no complaint was made about the nature and extent of charges made to Medicare—a matter noted by the primary judge at J[36] of her reasons (quoted above). The applicant has not demonstrated an arguable case of error in that finding.

33    For these reasons, the application for leave to appeal must be dismissed.

The application for leave to appeal from the first judgment

34    This application was filed out of time. Putting that impediment to one side, the draft notice of appeal contains this ground:

I was not afforded a fair hearing.

35    The ground is not particularised. More importantly, it is not advanced, in terms, in the applicant’s written outline of submissions. Rather, two different “grounds” are advanced. The first is that there was “no jurisdictional fact for the Attorney General for NSW to act” in proceeding ACD 44 of 2020. The second is that the doctrine of the separation of powers was abrogated by the primary judge granting leave to the Attorney General to intervene in proceeding ACD 44 of 2020.

36    In support of the first “ground”, the applicant’s written outline of submissions contends:

2.    Mr Frank Marks prosecuted a complaint from the Canberra Hospital in Health Care Complaints Commission v Michael Van Thanh Quach [2015] NSWCATOD 2 at [5].

3.    The NSW Supreme Court made a ruling specifically in relation the complaint from the Canberra Hospital in Quach v Horvarth [2021] NSW 1401 at [59],

    “the existence of a complaint is not a jurisdictional fact for the purpose of exercising the power to order an inquiry.”

4.    Therefore, matter arising from the complaint from the Canberra Hospital “is not jurisdictional fact” for Mr Frank Marks to prosecute.

5.    Also, matters arising from the complaint from the Canberra Hospital “is not jurisdictional fact” for the Attorney General for NSW to prosecute and defend Mr Frank Marks.

6.    The NSW Supreme Court has invalidated the judgements of Mr Frank Marks in Health Care Complaints Commission v Michael Van Thanh Quach [2015] NSWCATOD 2 and 32.

7.    The Attorney General for New South Wales cannot establish “jurisdictional fact” (Gedeon v NSW Crime Commission HCA 43 at [43]) to defend the conduct of Mr Frank Marks.

37    It is difficult to make sense of these submissions. The applicant’s reference to Gedeon v New South Wales Crime Commission [2008] HCA 43 in the last submission (7.) quoted above suggests that, in the applicant’s view, the Attorney General could only seek leave to intervene in proceeding ACD 44 of 2020 pursuant to some statutory grant of power to do so, conditioned on some criterion which had to be, but had not been, satisfied.

38    If that is what the applicant contends, then his contention is wrong and does not provide a viable basis on which to appeal. It was not incumbent on the Attorney General to establish a “jurisdictional fact”.

39    In granting leave to intervene, the primary judge exercised the power conferred by r 9.12 of the Rules, which provides:

(1)     A person may apply to the Court for leave to intervene in a proceeding with such rights, privileges and liabilities (including liabilities for costs) as may be determined by the Court.

(2)     The Court may have regard to:

(a)     whether the intervener’s contribution will be useful and different from the contribution of the parties to the proceeding; and

(b)     whether the intervention might unreasonably interfere with the ability of the parties to conduct the proceeding as the parties wish; and

(c)     any other matter that the Court considers relevant.

(3)     When giving leave, the Court may specify the form of assistance to be given by the intervener and the manner of participation of the intervener, including:

(a)     the matters that the intervener may raise; and

(b)     whether the intervener’s submissions are to be oral, in writing, or both.

Note 1: The Court may give leave subject to conditions—see rule 1.33.

Note 2: The Court may appoint an amicus curiae.

40    The applicant has not pointed to any error in the primary judge’s exercise of that power.

41    In support of the second “ground”, the applicant’s written outline of submissions contends:

8.     I rely on the Australian Constitution and the Separation of Powers that “divides the institutions of government into three branches: legislative, executive and judicial: the legislature makes the laws; the executive puts the laws into operation; and the judiciary interprets the laws. The powers and functions of each are separate and carried out by separate personnel. No single agency is able to exercise complete authority, each being interdependent on the other. Power thus divided should prevent absolutism (as in monarchies or dictatorships where all branches are concentrated in a single authority) or corruption arising from the opportunities that unchecked power offers. (NSW Parliament website, Affidavit 15 June 2022, Annexure “MQ5”).

9.     The Attorney General for New South Wales (as a single agency – Executive) defending a member of the Judiciary, Frank Marks, is exercising complete authority over the Judiciary constituting “absolutism.”

10.     The Australian Constitution and Separation of Powers, under Section 5, binds the Federal Court of Australia under Section 28(1)(b) of the Federal Court Act 1976 (Cth), to “refuse to make an order” to join the Attorney General for New South Wales exercising authority over the judiciary (Frank Marks), to prevent “absolutism.”

42    It is difficult to make any sense of the applicant’s submissions in support of this “ground”. It is sufficient for me to say that I do not see how the doctrine of the separation of powers is relevant to the primary judge’s exercise of power under r 9.12, or prevented the primary judge from granting leave to the Attorney General to intervene in proceeding ACD 44 of 2020.

43    I am not satisfied, therefore, that the applicant has raised an arguable ground of appeal in relation to the first judgment.

44    There is, however, a more fundamental objection to granting leave to appeal in respect of the first judgment: the application for leave is incompetent.

45    At the hearing at which the primary judge granted leave to the Attorney General to intervene, the applicant made an oral application for leave to appeal from the first judgment. He did so in reliance on r 35.01 of the Rules, which provides:

A party may apply orally for leave to appeal from an interlocutory judgment or order of the Court:

(a)     at the time of the pronouncement of the judgment or the making of the order; and

(b)     to the Judge who pronounced the judgment or made the order.

46    The applicant pressed his application for leave to appeal, and the primary judge rejected it, stating that leave to appeal was not appropriate given the nature of the application and the fact that it involved an exercise of the Court’s discretion.

47    In rejecting the application for leave to appeal on that occasion, the primary judge was exercising the Court’s appellate jurisdiction: Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 at 431 (Thomas Borthwick). No appeal lies from an order granting or refusing leave. Further, there is no jurisdiction to entertain a second application for leave if an earlier application has been refused: Thomas Borthwick at 431 – 433; Hamod v New South Wales [2002] FCA 424; 188 ALR 659 at [15]; Hurd v Zomojo Pty Ltd [2013] FCA 581 at [34] – [36].

Conclusion

48    The application for an extension of time and leave to appeal in ACD 25 of 2021 and the application for leave to appeal in ACD 57 of 2021 will be dismissed. The applicant is to pay the Attorney General’s costs of and incidental to each application.

Associate:

Dated:    11 November 2022