Federal Court of Australia

Quach v Australian Health Practitioner Regulation Agency (Adjournment) [2023] FCA 576

ORDERS

THE COURT ORDERS THAT:

1.    The adjournment application be dismissed.

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

REASONS FOR JUDGMENT

(Revised from transcript)

THAWLEY J:

1    In these proceedings, Dr Quach applies for an extension of time and leave to appeal from a decision of the primary judge granting summary judgment in favour of the respondent: Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313.

2    Dr Quach filed written submissions in respect of his application on 12 November 2021 and filed an affidavit in support on 22 November 2021. The respondent, the Australian Health Practitioner Regulation Agency (AHPRA) lodged for filing an outline of written submissions on 6 December 2021, taken to be filed on 7 December 2021, and Dr Quach filed submissions in reply on 20 December 2021.

3    On 26 April 2023, Dr Quach’s application for an extension of time and leave to appeal was listed for hearing today, 1 June 2023. By email to my associate on 29 May 2023, Dr Quach sought to have the hearing adjourned. The email stated that Dr Quach had developed flu-like symptoms over the weekend and that he would not be in good health at the hearing.

4    AHPRA objected to any adjournment on the basis that no medical evidence had been provided, the matter had been on foot for a considerable time, and hearing costs had already been incurred by AHPRA including arrangements for counsel to travel from Melbourne to Canberra.

5    Dr Quach then provided a medical certificate of Dr Richard Taumoepeau dated 29 May 2023. It was in the following terms:

This is to certify that Mr Michael Quach is unable to work from 29/05/2023 to 1/06/2023 inclusive due to a medical condition.

6    The parties were advised by email on 30 May 2023 that the Court had considered the communications provided and determined that the hearing would remain fixed for 1 June 2023, at the commencement of which Dr Quach could apply for an adjournment if he still wished to do so at that time.

7    Dr Quach made an adjournment application at the hearing today and was invited to advance oral submissions as to why the Court should grant an adjournment. He relied upon an affidavit which he affirmed on 31 May 2023 which was read without objection, and which stated that he was recovering from a chest infection, asserted that he was unable to participate effectively in the hearing and attached a second medical certificate from Dr Taumoepeau dated 31 May 2023. This medical certificate stated:

This is to certify that Mr Michael Quach is unable to effective participate- has urge to cough--is recovering from a chest infection 05/2023 to 1/06/2023 inclusive

8    Neither medical certificate relied upon by Dr Quach provides a satisfactory evidentiary basis for granting an adjournment.

9    As to the first medical certificate, it does not provide a diagnosis of the condition suffered by Dr Quach or explain the nature of that condition. The certificate does not contain an opinion about whether or not Dr Quach is or was prevented or hindered in his preparation for, attendance at or participation in, a hearing. Necessarily, it contains no reasons for any such opinion sufficient to enable the Court to form its own view about the reliability of the opinion – see further: BXD17 v Minister for Immigration and Border Protection [2018] FCA 765 at [35]; Kaur v Minister for Immigration and Border Protection [2016] FCA 565 at [12]-[14]; Singh v Minister for Immigration and Border Protection [2016] FCA 108 at [2]; NAKX v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1559 at [5]-[11]; MZZTC v Minister for Immigration and Border Protection [2015] FCA 1209 at [2].

10    As to the second medical certificate, it states that Dr Quach suffered from a chest infection and the only stated consequence of this is that he has the urge to cough. The medical certificate does not state an opinion that Dr Quach was unable to prepare for the hearing. Whilst it states that Dr Quach has the urge to cough that is not a basis for concluding that he has not been able adequately to prepare for the hearing.

11    Having heard Dr Quach advance submissions on his adjournment application, it is plain that he is able to participate meaningfully during the hearing.

12    I am not satisfied that an adjournment is warranted in the interests of the administration of justice, having regard to Dr Quach’s condition and the fact that the case has been before the Court for some considerable time and the parties have had the opportunity to file submissions and evidence. I also take into account that the Court can afford Dr Quach time, during the course of this morning, to advance whatever submissions in whatever time he requires in order to ensure that fairness is afforded to him in the presentation of his case.

13    For these reasons, the adjournment application is refused.

Associate:

Dated:    2 June 2023