Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267

On 20 October 2017 the New South Wales Court of Appeal handed down its decision in Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267. The case concerned a medical practitioner (the Practitioner) who had two notices of complaint lodged against him by the Health Care Complaints Commission. The notices contained ten separate complaints about the Practitioner, including those of professional misconduct, impairment and a lack of sufficient mental capacity, knowledge and skill to practise as a health practitioner.

Government agencies particularly when exercising a public facing regulatory or service delivery function are frequently targets for vexatious litigants. In this instance the litigant also sought the recusal of the members of the Court of Appeal allocated to hear the matter.

Facts

The first notice of complaint was lodged with the then Medical Tribunal of New South Wales, and the second was lodged with the New South Wales Civil and Administrative Tribunal (the Tribunal). The Tribunal found that each of the ten complaints had been made out, as well as making two findings of professional misconduct and findings of impairment and lack of competence to practise. As a result, the Tribunal made orders cancelling the Practitioner’s registration as a medical practitioner, precluding any application for review for seven years and prohibiting the Practitioner from providing any health service whether it be on a public, private or volunteer basis. In response to these orders, the Practitioner commenced three different proceedings between February and May 2015 by way of judicial review of the Tribunal’s decision, all of which were unsuccessful.

The Practitioner was invited to file written submissions in response to a foreshadowed vexatious proceedings order to show cause and to indicate if he sought an oral hearing in open court. The Practitioner filed a document after the order fell due for compliance, in which he sought an oral hearing, as well as filing three further notices of motion on the same date.

These notices of motion sought recusal of the members of the Court of Appeal allocated to hear the show cause matters on the basis that, among other things, Gleeson and Simpson JA and Sackville AJA did “not hold judicial office” and that their Honours “would not bring an impartial mind to the resolution of the relevant question”. These applications were unsuccessful, and a hearing of the show cause matters and the notices of motion was fixed. All members of the Court declined to recuse themselves, and the Court reserved its decision.

After the hearing had concluded, the Practitioner went on to file (without leave) another submission document, which argued, among other things, that Sackville AJA should be disqualified due to his age, as well as serving (without leave) a notice to produce on the Crown Solicitor’s Office.

Vexatious litigation

Section 8(1)(a) of the Vexatious Proceedings Act 2008 (NSW) (the Act) provides that an authorised court may make a vexatious proceedings order in relation to a person if the court is satisfied that the person has frequently instituted or conducted vexatious proceedings in Australia.

“Vexatious proceedings” are defined in section 6 of the Act as:

  1. proceedings that are an abuse of the process of a court or tribunal, and
  2. proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and
  3. proceedings instituted or pursued without reasonable ground, and
  4. proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

Decision

In dismissing the Practitioner’s recusal applications, the Court found, among other things:

  • there was no merit in the Practitioner’s contention that Sackville AJA’s appointment to the Court of Appeal was invalid due to his age;
  • the Practitioner had not been denied procedural fairness, since he had been given the opportunity to file written submissions and request an oral hearing, which he had been afforded, and therefore a vexatious proceedings order could now be made against him; and
  • the test for recusal – which is whether a fair-minded lay person, with knowledge of the matters relied upon by the Practitioner, might consider the judicial officer might not carry out his or her judicial functions dispassionately and impartially – was not satisfied for any member of the Court.

The Court ultimately held a vexatious proceedings order should be made against the Practitioner, with Gleeson JA noting:

It is apparent from the history of this matter and his submissions that the Practitioner will continue, unless a vexatious proceeding order is made, to pursue the same claims as he has been making notwithstanding that his numerous applications relating to those claims have been dismissed in four cases on the ground that they constituted an abuse of the Court’s processes.