Supreme Court Dismisses Vexatious Proceedings Under VPA 2008

The Supreme Court of New South Wales declared the claimant's proceedings vexatious and dismissed them under the Vexatious Proceedings Act 2008, due to the lack of leave to initiate the proceedings.

[NAME]: Quach v [NAME] Tribunal of [NAME] [2022] NSWSC 1091 Hearing dates: On the papers Date of orders: 16 August 2022 Decision date: 16 August 2022 Jurisdiction: Common Law Before: [NAME] J Decision: (1) An order declaring that the proceedings commenced by the filing of the summons on 16 December 2021 (the Proceedings) are proceedings to which s 13(2) and (3) of the Vexatious Proceedings Act 2008 ([NAME]) apply. (2) An order declaring that the Proceedings are taken to have been dismissed on 14 January 2022 by operation of s 13(3) of the Vexatious Proceedings Act 2008 ([NAME]). (3) An order that the plaintiff is to pay the [NAME]' costs of the Proceedings. Catchwords: APPEAL – Procedure – Vexatious litigant – Purported appeal to the Supreme Court from decision of the Appeal Panel of the [NAME] Tribunal dismissing appeal from a profession decision of the Occupational Division – No right of appeal to Appeal Panel of [NAME] from a profession decision of the Occupational Division – In dismissing appeal the Appeal Panel did not have to be constituted in accordance with s 165B of the Health Practitioners Regulation National Law ([NAME]). APPEAL – Purported appeal to the Supreme Court from decision of Appeal Panel dismissing an appeal from a profession decision of the Occupational Division of [NAME] order of the Court of Appeal under the Vexatious Proceedings Act 2008 ([NAME]) prohibiting plaintiff instituting proceedings stayed because of institution of appeal against the dismissal of an appeal to the Appeal Panel from a profession decision of the Occupational Division of [NAME]– No stay. [NAME] litigant – Institution of proceedings without leave – Proceedings stayed from institution and taken to be dismissed after 28 days if not ordered to be dismissed earlier by operation of s 13 of the Vexatious Proceedings Act 2008 ([NAME]) - Declaratory orders made formally recording dismissal under the statute. [NAME] for Bias – Apprehended bias – Mere fact of being President of [NAME] at the time of the decisions appealed against does not provide a basis to conclude that a fair-minded lay observer, being aware of ordinary judicial practice, might reasonably apprehend that a former President might not bring an impartial mind to the resolution of an appeal from those decisions. Legislation Cited: [NAME] Tribunal Act 2013 ([NAME]), ss 17, 55, 80, 82, 83, 84, Sch 5 cl 29, Sch 6 cl 14 Health Practitioner Regulation National Law ([NAME]), ss 165, 165B Judiciary Act 1903 (Cth), s 78B [NAME] 2005 ([NAME]), rr 50.4, 59.4 Vexatious Proceedings Act 2008 ([NAME]), ss 8, 13, 14, 16 Cases Cited: Charisteas v Charisteas [2021] HCA 29; 95 ALJR 824 [NAME] v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Health Care Complaints Commission v Quach [2015] NSWCATOD 2 [NAME] Commission v Quach (No 2) [2015] NSWCATOD 32 Quach v [NAME] (No 2) [2021] FCA 922 Quach v New South Wales Civil and Administrative Tribunal [2019] NSWCA 49 Quach v New South Wales Civil and Administrative Tribunal [2019] NSWCA 200 Quach v New South Wales Civil and Administrative Tribunal [2020] NSWCA 295 Quach v [NAME] Tribunal (No 2) [2017] NSWCA 182 Quach v [NAME] Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267 Quach v [NAME] Commission (No 6) [2017] NSWCA 183 Quach v [NAME] Commission; Quach v New South Wales Civil and Administrative Tribunal [2018] NSWCA 175 Category: [NAME] judgment Parties: [NAME] (Plaintiff) [NAME] Tribunal of [NAME] (First Defendant) [NAME] Commission ([NAME] Defendant) Representation: Solicitors: [redacted] [NAME] ([NAME] Defendant) File Number(s): 2021/00357236-1 Decision under appeal Court or tribunal: [NAME] Tribunal of [NAME]: Appeal Panel Date of Decision: 19 November 2019 Before: [NAME](s): 2021/00313229

Judgment 1. On 16 December 2021, Mr [NAME] filed a summons in this Court seeking orders against the first defendant, the [NAME] Tribunal of [NAME], or [NAME], and the [NAME] defendant, the [NAME] Commission (HCCC), as follows: "1. Set aside judgement of [NAME] Tribunal on 19 November 2021 in matter 2021/00313229 – [NAME] v [NAME] Commission 2. Order the [NAME] Tribunal to properly hear the internal appeal 2021/00313229 – [NAME] v [NAME] Commission."

1. The summons, in so far as it was intended to institute an appeal to the Supreme Court under ss 82(1)(a) and 83(1) of the [NAME] Tribunal Act 2013 ([NAME]), wrongly named the Tribunal as a party, contrary to s 84(3) of that Act, and did not seek leave as required by s 83(1). It also failed to comply with r 50.4 of the [NAME] 2005 ([NAME]) (UCPR), in that the summons did not identify specifically the grounds on which Mr Quach relied. Similarly, if the summons was intended to institute proceedings seeking judicial review of the Appeal Panel's decision, it did not comply with UCPR r 59.4 which also requires the grounds relied upon to be identified with specificity.

2. Nonetheless, at the same time as the summons was filed, Mr Quach also filed an affidavit affirmed by him on 16 December 2021. That affidavit provided some information as to the grounds upon which Mr Quach sought to have the [NAME] Appeal Panel's decision made on 19 November 2021 set aside. The grounds relied upon appeared to be based on the following:

1. Annexed to the affidavit was a copy of Mr Quach's [NAME] notice of appeal (in the form suitable for an internal appeal to the [NAME] Appeal Panel under s 80 of the [NAME] Tribunal Act) seeking to appeal against decisions of the Occupational Division of [NAME] in proceedings 1420086 and 1420065.

2. It was noted that the Federal Court had said in Quach v [NAME] (No 2) [2021] FCA 922 at [22] that "a party may challenge an error by [NAME] by an appeal to [NAME]'s Appeal Panel".

3. It was then noted that under s 165B of the Health Practitioner Regulation National Law ([NAME]) proceedings in [NAME] under that Law involving a medical practitioner are to be presided over by a "senior judicial officer" (as defined in s 165).

4. Annexed to the affidavit was a copy of the orders in proceedings 2021/00313229 made by [NAME] Member [NAME] on 19 November 2021 dismissing the appeal to the Appeal Panel and ordering Mr Quach to pay costs.

5. It was noted that Member [NAME] was not a "senior judicial officer" as defined.

6. Therefore, it was said that the orders made on 19 November 2021 were invalid.

1. Whatever else his affidavit might establish, it was not in dispute that Mr Quach's summons filed on 16 December 2021 related to the subject matter of proceedings 1420086 and 1420065 in [NAME].

2. On 20 October 2017, the Court of Appeal, an authorised court for the purposes of the Vexatious Proceedings Act 2008 ([NAME]), had made orders under that Act in relation to Mr Quach: Quach v [NAME] Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267. Those orders included order (5) which was in the following terms: "(5) Pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008 ([NAME]), [NAME] is prohibited from instituting any further proceedings in [NAME] relating to the subject matter of proceedings 1420086 and 1420065 in the [NAME] Tribunal ([NAME]) (entitled "[NAME] Commission v Quach") or relating to proceedings 2015/158685, 2015/67618 and 2015/48269 in the [NAME] of Appeal." 1. [ADDRESS] of Appeal has refused to set aside or declined to consider setting aside these vexatious proceedings orders on numerous occasions: Quach v [NAME] Commission; Quach v New South Wales Civil and Administrative Tribunal [2018] NSWCA 175; Quach v New South Wales Civil and Administrative Tribunal [2019] NSWCA 49; Quach v New South Wales Civil and Administrative Tribunal [2019] NSWCA 200; and Quach v New South Wales Civil and Administrative Tribunal [2020] NSWCA 295.

2. It was not in dispute that Mr Quach did not apply for or obtain leave under ss 14 and 16 of the Vexatious Proceedings Act to institute the proceedings commenced by filing the summons on 16 December 2021.

3. On 14 February 2022, the HCCC filed a notice of appearance and Mr Quach filed an affidavit of service of the summons and his supporting affidavit.

4. On 15 February 2022, a Legal Officer of the HCCC wrote to the Registrar, copied to Mr Quach, bringing to her attention that vexatious proceedings orders had been made by the Court of Appeal, which covered the proceedings instituted by the filing of the summons on 16 December 2021, and that leave to institute those proceedings had not been obtained. After referring to various provisions of s 13 of the Vexatious Proceedings Act, the letter continued: "The [HCCC] does not seek a further hearing on whether an order should be made pursuant to section 13(4) and is content for the 28 days to elapse and the Plaintiff's summons is then dismissed pursuant to section 13 (3). If, however, the Plaintiff wishes to put before the Court an argument as to why the proceedings should be allowed to continue, the Commission has proposed short minutes of order for a timetable providing for the parties to file and service any evidence and written submissions of which they seek to rely."

1. By an email dated 15 February 2022 copied to Mr Quach, the Legal Officer informed the Registrar that Mr Quach had not consented to the proposed orders in the short minutes of orders.

2. On 16 February 2022, the Registrar referred the summons to the Chief Judge at Common Law, as it had been filed without leave under the Vexatious Proceeding Act.

3. On 28 February 2022, [NAME] filed a submitting appearance except as to costs.

4. On 21 March 2022, Mr Quach filed a document headed "Notice of Constitutional Matter" which identified the constitutional matter he sought to raise as follows: "1. The matter is an appeal to the [NAME] from the decision of the [NAME] Tribunal (2021/00313229 – [NAME] v [NAME] Commission) to refuse an internal appeal of the decisions of [NAME] Commission v [NAME] [2] and [32].

2. Pursuant to the Federal Court ruling in Quach v Marks [2021] FCA 922 at [22], '… A party may challenge an error by [NAME] by an appeal to [NAME]'s Appeal Panel and thence an appeal to the Supreme Court of [NAME] (or alternatively by an application for judicial review to the Supreme Court of [NAME]).'

3. Pursuant to Section 109 of the Australian Constitution, 'When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former Shell, to the extent of the inconsistency, be invalid'. Therefore, any state order to refuse to hear an appeal in respect of [NAME] Commission v [NAME] [2] and [32], is inconsistent with the Federal Court ruling at [2]. That is, the decision 2021/00313229 - [NAME] v [NAME] Commission is invalid."

1. It can be noted that "[NAME] Commission v [NAME] [2] and [32]" in par 1. of that notice appears to be a reference to Health Care Complaints Commission v Quach [2015] NSWCATOD 2 and [NAME] Commission v Quach (No 2) [2015] NSWCATOD 32, both of which decisions related to the subject matter of proceedings 1420086 and 1420065 in [NAME]. [ADDRESS] of Appeal's vexatious proceedings order (5) expressly applied to "further proceedings in [NAME] relating to the subject matter of proceedings 1420086 and 1420065".

2. In addition, for reasons which will be explained below, the matter sought to be raised in the notice was misconceived and did not involve a matter arising under the Constitution. Furthermore, although there was no evidence as to whether this notice was served on any of the Attorneys General as envisaged under s 78B(1) of the Judiciary Act 1903 (Cth), I am satisfied that, if the notice was served, reasonable time has elapsed since the giving of the notice for consideration by the Attorneys General of the question of intervention in the proceedings or removal of the cause to the High Court.

3. Mr Quach wrote a letter to the Registrar dated 30 March 2022 apparently outlining the basis upon which he argued that the present proceedings should not be taken to have been dismissed under s 13(3) of the Vexatious Proceedings Act. The letter was in the following terms: "Re: Matter Quach v [NAME] Tribunal 2022/357236 The above matter is an appeal to the Supreme Court from a decision of the [NAME] Tribunal in Quach v [NAME] Commission 2021/00313229, relating to matter 1420086 and 1420065 in the Tribunal. I rely on Section 14 (5) Appeals to Supreme Court under this Part of the [NAME] Tribunal Act 2013 ([NAME]), "(5) Subject to any interlocutory order made by the Supreme Court, [an] appeal to the Supreme Court operates to stay the decision under appeal." to submit that the orders made by the [NAME] Tribunal in [?is] stayed in matters: 1. 1420086 2. 1420065 3. 2021/00313229 Subsequently, in my respectful submission, order 5 of Quach v [NAME] Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267 is also stayed. I, therefore, respectfully request that the matter be listed for directions. I would appreciated if you would respond at the earliest convenience. Thank you so much."

1. The proceedings have been referred to me to be considered on the papers.

2. Section 13 of the Vexatious Proceedings Act provides: "13 Contravention of vexatious proceedings order prohibiting institution of proceedings (1) If an authorised court makes a vexatious proceedings order prohibiting a person from instituting proceedings: (a) the person may not institute proceedings of the kind to which the order relates without the leave of an appropriate authorised court under section 16, … (2) If proceedings are instituted in contravention of subsection (1), the proceedings are stayed until they are dismissed (or taken to be dismissed) under this section. (3) Any proceedings that are stayed by subsection (2) are taken to be dismissed by the court or tribunal in which they were instituted on the expiry of the period of 28 days after the proceedings were first instituted, unless the proceedings are sooner dismissed under subsection (4). (4) Without limiting subsection (2) or (3), the authorised court, or the court or tribunal in which the proceedings are instituted, may make: (a) an order declaring that proceedings are proceedings to which subsections (2) and (3) apply, and (b) an order dismissing the proceedings before the expiry of the period referred to in subsection (3), and (c) any other order in relation to the proceedings that it considers appropriate, including an order for costs. (5) An authorised court, or the court or tribunal in which the proceedings are instituted, may make an order under subsection (4) of its own motion or on the application of a person referred to in section 8 (4)."

1. In light of the circumstances set out above, I am satisfied that:

1. An authorised court has made a vexatious proceedings order prohibiting Mr Quach from instituting proceedings "relating to the subject matter of proceedings 1420086 and 1420065 in the [NAME] Tribunal ([NAME]) (entitled '[NAME] Commission v Quach')".

2. The present proceedings involve a purported "appeal to the Supreme Court from a decision of [NAME] in Quach v [NAME] Commission 2021/00313229, relating to matters 1420086 and 1420065 in the Tribunal" and are proceedings falling with that vexatious proceeding order.

3. Mr Quach did not apply for leave to institute the present proceedings under s 14 of the Vexatious Proceedings Act and no leave was obtained under s 16 of the Act.

1. Consequently, the present proceedings were instituted in contravention of s 13(1) of the Vexatious Proceedings Act, were stayed under s 13(2) and are taken to have been dismissed by operation of s 13(3), unless s 13 did not apply in the present case.

2. From his letter of 30 March 2022, Mr Quach's argument as to why the provisions of s 13 of the Vexatious Proceedings Act did not apply appears to be that:

1. He has appealed against the decision dismissing his appeal to the [NAME] Appeal Panel in proceedings 2021/00313229 and that appeal related to proceedings 1420086 and 1420065 in the Occupational Division of [NAME].

2. By operation of cl 14(5) of Sch 6 to the [NAME] Tribunal Act, which is in the terms quoted by him in his letter of 30 March 2022 (but incorrectly referred to by him as s 14(5) of that Act), all of the orders in those three proceedings are stayed.

3. Because the Court of Appeal's vexatious orders, including order (5), in Quach v [NAME] Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267 related to proceedings 1420086 and 1420065 in the Occupational Division of [NAME], those orders were also stayed.

4. Thus, the vexatious proceedings order which would have prevented him from instituting the present proceedings by filing the summons on 16 December 2021 was stayed at the relevant time.

1. This argument is flawed on many levels. It is sufficient to note that, most fundamentally, it is flawed because the provision of the [NAME] Tribunal Act which he relies upon, namely cl 14(5) of Sch 6 which provides that "an appeal to the Supreme Court operates to stay the decision under appeal", is found in the Schedule to that Act which relates to the Guardianship Division, not the Occupational Division. Thus, that provision only applies to appeals to the Supreme Court from decisions of the Guardianship Division in accordance with cl 14 of Sch 6 and not to the Occupational Division decisions which Mr Quach seeks to challenge.

2. The Schedule which relates to the Occupational Division is Sch 5 of the [NAME] Tribunal Act. Appeals to the Supreme Court from decisions of the Occupational Division concerning medical practitioners, as Mr Quach formerly was, are governed by cl 29 of Sch 5 which relevantly provides: "29 Certain profession decisions to be appealed directly to Supreme Court or Land and [ADDRESS] (1) Profession decisions not internally appealable Despite section 32 of this Act, each of the following Division decisions (a profession decision) is not an internally appealable decision for the purposes of an internal appeal— … (d) a decision for the purposes of the Health Practitioner Regulation National Law ([NAME]) (other than a decision for the purposes of clause 13 of Schedule 5F to that Law), … Note— A Division decision other than a profession decision that is a general decision or administrative review decision may be subject to an internal appeal. See section 32 and Division 2 of Part 6 of the Act. (2) Right to appeal to Supreme Court or Land and [ADDRESS], a party to proceedings in which a profession decision is made may appeal against the decision in accordance with this clause to— (a) in the case of an order for the purposes of Division 3 of Part 5 or Division 4 of Part 7 of the Aboriginal Land Rights Act 1983 declaring a vacancy in an office—the Land and [ADDRESS], and (b) in the case of any other decision—the Supreme Court. … (9) Effect of appeal on profession decision Subject to any interlocutory order made by the court concerned, an appeal under this clause does not affect the operation of the Division decision under appeal or prevent the taking of action to implement the decision."

1. The decision of the Occupational Division in proceedings 1420086 and 1420065 concerning Mr Quach were decisions falling within cl 29(1)(d) of Sch 5 of the [NAME] Tribunal Act. A number of things follow from the terms of cl 29.

2. First, the decisions in proceedings 1420086 and 1420065, which were decisions for the purposes of the Health Practitioner Regulation National Law (other than for the purposes of Sch 5F cl 13) were not internally appealable decisions, by operation of cl 29(1)(d). Thus, the purported internal appeal to the [NAME] Appeal Panel in proceedings 2021/00313229 from the "profession decisions" in proceedings 1420086 and 1420065 was misconceived and incompetent. Section 165B of the Health Practitioner Regulation National Law had no application in respect of the decision by the [NAME] Appeal Panel to dismiss that purported internal appeal. That appeal was properly dismissed by [NAME] Member [NAME], who was exercising powers under ss 55(1)(b) and 80(1)(a) of the [NAME] Tribunal Act and not powers under the National Law. As a result, the summons filed on 16 December 2021 instituting the present proceedings in this Court and seeking to appeal from that dismissal would be bound to fail, even if there were no vexatious proceedings order in effect and the proceedings were not stayed and dismissed by operation of s 13 of the Vexatious Proceedings Act.

3. Secondly, cl 29(1)(d) of Sch 5 has the effect that the comment of [NAME] in Quach v [NAME] (No 2) [2021] FCA 922 at [22] that "a party may challenge an error by [NAME] by an appeal to [NAME]'s Appeal Panel", while generally correct for decisions in relation to which [NAME] has "internal appeal jurisdiction" under s 32 of the [NAME] Tribunal Act, is not correct in relation to the decisions against which Mr Quach has sought to appeal which are "profession decisions" as identified in cl 29(1) of Sch 5. Unfortunately, it appears that cl 29 and the fact that the provisions of the Division Schedules to the [NAME] Tribunal Act generally prevail over any inconsistent provisions of the Act itself, by operation of s 17(3) of that Act, were not brought to her Honour's attention in the Federal Court proceedings. Consequently, Mr Quach's attempt to rely on [NAME]'s comment as a basis for contending that a constitutional matter arises in this case fails at the very outset. Further and in any event, a comment by a Federal Court Judge concerning the operation of a [NAME] statute could not give rise to an inconsistency of the type to which s 109 of the Commonwealth Constitution applies.

4. Thirdly, in contrast to the position under cl 14(5) of Sch 6 of the [NAME] Tribunal Act which relates to decisions of the Guardianship Division: 1. cl 29(9) of Sch 5, which applies to appeals to the Supreme Court from profession decisions made in the Occupational Division (including the decisions in proceedings 1420086 and 1420065); and 2. s 83(5) of the [NAME] Tribunal Act which governs appeals from the Appeal Panel to the Supreme Court (including the purported appeal in the present proceedings), both provide that such an appeal does not "not affect the operation of the … decision under appeal or prevent the taking of action to implement the decision". In other words, appeals under cl 29 of Sch 5 and s 83 do not effect a stay of the decisions appealed against. Thus, the whole foundation for Mr Quach's argument as to why the vexatious proceedings orders are stayed also fails.

1. Moreover, even if there were no fundamental problem with the proposition that the decisions of the Occupational Division of [NAME] in proceedings 1420086 and 1420065 and the Appeal Panel decision in the present proceedings were stayed by operation of the provisions of the [NAME] Tribunal Act when an appeal in relation to those decisions was instituted in the Supreme Court, it would not follow from a stay of those decisions that the Court of Appeal's vexatious proceedings order (5) made on 20 October 2017 would also be stayed. There is simply no basis for such a conclusion, absent an order from the Court of Appeal or the High Court staying order (5).

2. In summary, there is no merit whatsoever in any aspect of Mr Quach's argument that the Court of Appeal's vexatious proceedings order (5) has been stayed and did not operate to prohibit his instituting the present proceedings without leave.

3. Since order (5) made by the Court of Appeal on 20 October 2017 has been at all relevant times, and is, operative, the present proceedings were instituted in contravention of s 13(1) of the Vexatious Proceedings Act. It follows from the terms of s 13(2) and (3) that the present proceedings have been stayed from the date of their institution on 16 December 2021 and are taken to have been dismissed on the expiry of 28 days after the proceeding were first instituted, that is on 14 January 2022. It would not be consistent with the clear terms of the statute if the steps taken by all the parties after 14 January 2022 had the effect of reviving or continuing the proceedings after their statutory dismissal effected by s 13(3) of the Vexatious Proceedings Act, and they do not.

4. Under s 13(4) of that Act, this Court may make orders declaring that proceedings are proceedings to which subsections (2) and (3) apply as well as any other order in relation to the proceedings that it considers appropriate, including an order for costs. Those orders may be made on the Court's own motion or on the application of a person referred to in s 8(4): Vexatious Proceedings Act, s 13(5).

5. In the circumstances, I am of the view that it is appropriate to make declaratory orders formally recording the dismissed status of the present proceedings. In addition, since the proceedings were instituted without leave and there was no arguable foundation for a conclusion that the Court of Appeal's vexatious proceedings order (5) had been stayed or was otherwise inoperative, it is appropriate that Mr Quach be ordered to pay the two [NAME]' costs.

6.

Accordingly, the Court makes:

1. An order declaring that the proceedings commenced by the filing of the summons on 16 December 2021 (the Proceedings) are proceedings to which s 13(2) and (3) of the Vexatious Proceedings Act 2008 ([NAME]) apply.

2. An order declaring that the Proceedings are taken to have been dismissed on 14 January 2022 by operation of s 13(3) of the Vexatious Proceedings Act 2008 ([NAME]).

3. An order that the plaintiff is to pay the [NAME]' costs of the Proceedings.

Addendum 1. On 15 August 2022, [NAME] notified the parties by email that this matter was listed for judgment the following day. Shortly after, Mr Quach replied by email, copied to representatives of the other parties. That email included the following: "With respect, there is an obvious conflict of interest that arises from [NAME]'s J presiding over this matter, as His Honour was the President of the [NAME] and now the Supreme Court judge in this application for appeal. I wish to raise this point for an application for recusal."

1. It was observed in [NAME] v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 ([NAME]) at [2] (Gleeson CJ, [NAME], Gummow and Hayne JJ): "There are many possible forms of association, personal, social, financial, or ideological, that might exist between a judge and a litigant, or someone concerned in litigation. Such association may, or may not, have the potential to bring into question the independence or impartiality of the judge. It may, or may not, give rise to a suggestion that a judge has an interest in the outcome of proceedings."

1. In the absence the identification of any particular or specific interest on my part in the outcome of the proceedings or an allegation in the email of actual bias, I understood Mr Quach's recusal application to be put on the basis that a reasonable apprehension of bias arose in this case.

2. The principle governing a recusal application of this nature is very well established. A judge should not determine proceedings if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: [NAME] at [6].

3. The application of this principle requires two steps, as explained in [NAME] at [8]. First, it requires the identification of what it is said might lead the judge to decide the case other than on its legal and factual merits. The [NAME] step is that it is necessary to articulate the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.

4. As to the first step, the terms of the email indicated that the recusal application was put on the basis of that I was in a position of a "conflict of interest" arising from my previous role as President of [NAME], presumably because the present matter involved a purported appeal from a decision of the Appeal Panel of [NAME] relating to matters heard in the Occupational Division of the Tribunal at the time when I was President of [NAME]. It was not suggested, however, that I had any relevant previous involvement with any of Mr Quach's matters while I was President or as a judge in the Common Law Division. The two relevant [NAME] matters, proceedings numbered 1420086 and 1420065, were heard by [NAME] Member, [NAME], Professional Member, [NAME], Professional Member and [NAME], Lay Member: Health Care Complaints Commission v Quach [2015] NSWCATOD 2; and [NAME] Commission v Quach (No 2) [2015] NSWCATOD 32. The purported appeal to the Appeal Panel in [NAME] proceedings 2021/00313229 relating to these matters was dealt with by [NAME], some years after I ceased to be President. Furthermore, Mr Quach's email did not suggest that I had any particular or specific "interest", whether personal, social, financial, or ideological, in the outcome of the present proceedings in this Court, which I have been required to determine.

5. In short, it appears that the matter which was said might lead me to decide the case other than on its legal and factual merits was merely that I was President of [NAME] at the time the Occupational Division determined the two proceedings relating to Mr Quach.

6. As to the [NAME] step, the only logical connection suggested was that merely as a result of being President of [NAME] at the time of Mr Quach's proceedings in the Occupational Division were heard and determined, it might be feared that I would not decide the present case on its merits. It was not articulated how my formerly being the President of [NAME] might actually affect my decision in the present case in any improper way.

7. Further and in any event, in considering whether, in the present case, a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the present case, it must be noted that the reasonableness of the law observer's apprehension is to be considered "in the context of ordinary judicial practice": Charisteas v Charisteas [2021] HCA 29 at [12] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ); 95 ALJR 824 quoting [NAME] at [13]; see also Kirby J's comments in [NAME] at [53]. It is ordinary judicial practice for the head of a tribunal or court, such as the President of [NAME] or a Chief Justice or a Chief Judge, to hear and determine appeals from decisions or orders of the tribunal or court of which they are or have been head, whether in the tribunal or court itself or in a court to which an appeal lies from that tribunal or court. This occurs as a matter of course without any suggestion or reasonable apprehension of a conflict of interest or bias.

8. In the present case, in my view there was no proper basis to conclude that a fair-minded lay observer, being aware of ordinary judicial practice, might reasonably apprehend that I might not bring an impartial mind to the resolution of the present case.

Accordingly, I declined to recuse myself.

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Amendments 17 August 2022 - Typographical error in orders. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 August 2022