Quach v Marks (No 2)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 10 August 2021
• Neutral Citation: [2021] FCA 922
• Date: 10 August 2021

Federal Court of Australia

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

File number:	ACD 44 of 2020
Judgment of:	ABRAHAM J
Date of judgment:	10 August 2021
Catchwords:	HIGH COURT AND FEDERAL COURT – application for recusal of a judge on basis of apprehended bias – where presiding judge previously decided matters adversely to applicant – no basis for recusal established ; PRACTICE AND PROCEDURE – application to set aside originating application for want of jurisdiction under r 13.01 of Federal Court Rules 2011 (Cth) – where claim is a “colourable” federal claim – application to set aside originating application granted ; PRACTICE AND PROCEDURE– application for summary dismissal under r 26.01 of Federal Court Rules 2011 (Cth) – where no reasonable prospects of success – where proceedings instituted vexatiously – where no reasonable cause of action disclosed – application for summary dismissal granted
Legislation:	Civil and Administrative Tribunal Act 2013 (NSW) s 60 Crimes Act 1914 (Cth) Evidence Act 1995 (Cth) s 91 Federal Court of Australia Act 1976 (Cth) ss 19(1), 31A(2) Federal Court Rules 2011 (Cth) rr 13.01, 26.01 Health Practitioner Regulation National Law 2009 (NSW)
Cases cited:	Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 Doggett v Commonwealth Bank of Australia [2019] FCAFC 19 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Felton v Mulligan (1971) 124 CLR 367 Frugtniet v Secretary, Department of Social Services [2021] FCAFC 127 GetSwift Ltd v Webb [2021] FCAFC 26 Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32 Health Care Complaints Commission v Quach [2015] NSWCATOD 2 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 Page v Sydney Seaplanes Pty Ltd [2020] FCA 537; (2020) 277 FCR 658 Qantas Airways Ltd v Lustig [2015] FCA 253; (2015) 228 FCR 148 Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313 Quach v Marks [2021] FCA 335 Quach v New South Wales Civil and Administrative Tribunal [2020] NSWCA 214 Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10 Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267 Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1 In Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
Division:	General Division
Registry:	Australian Capital Territory
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	42
Date of hearing:	3 August 2021
Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	The respondent filed a submitting notice, save as to costs.
Counsel for the Intervener:	Mr D Birch
Solicitor for the Intervener:	NSW Crown Solicitor

ORDERS

		ACD 44 of 2020
BETWEEN:	MICHAEL VAN THANH QUACH Applicant
AND:	FRANK MARKS Respondent
	ATTORNEY GENERAL OF NEW SOUTH WALES Intervener

order made by:	ABRAHAM J
DATE OF ORDER:	10 August 2021

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:

1. compensatory damages;

2. interest; and

3. 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...