Quach v Horvarth [2021] NSWSC 1401

Quach v Horvarth [2021] NSWSC 1401

The amended summons was hopeless and was dismissed because the proceedings were commenced about 22 years after the impugned notice and outside UCPR 59.10 with no extension application; Professor Horvath did not personally make the alleged decision to hold the inquiry, as the power was vested in the NSW Medical Board; the Medical Practice Act did not require a complaint as a jurisdictional fact for an inquiry into eligibility for registration; the NSW Medical Board had jurisdiction to consider eligibility for registration under the New South Wales Act; certiorari would have no utility after the time and place fixed by the notice had long passed; there had been extraordinary and...

Jurisdiction
Australia
Judgment Date
01 November 2021
Procedural Posture
Judicial Review Proceeding / Defendant's Notice of Motion Filed 4 June 2021 Seeking Summary Judgment and Dismissal Under UCPR 13.4
Outcome
The amended summons filed 27 May 2021 was dismissed.
Legal Topics
['summary Dismissal' 'frivolous and Vexatious Proceedings' 'no Reasonable Cause of Action' 'abuse of Process' 'time for Commencing Judicial Review Proceedings' 'jurisdictional Fact' 'certiorari' 'delay' 'medical Practitioner Registration Inquiry' 'private Criminal Prosecution' 'compensatory Damages for Excess of Public Power']
['civil Procedure' 'administrative Law' 'judicial Review'] ['summary Dismissal' 'frivolous and Vexatious Proceedings' 'no Reasonable Cause of Action' 'abuse of Process' 'time for Commencing Judicial Review Proceedings' 'jurisdictional Fact' 'certiorari' 'delay' 'medical Practitioner Registration Inquiry' 'private Criminal Prosecution' 'compensatory Damages for Excess of Public Power']

Case Brief

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Procedural Posture

Judicial Review Proceeding / Defendant's Notice of Motion Filed 4 June 2021 Seeking Summary Judgment and Dismissal Under UCPR 13.4

Legal Issues

  1. 1 ['Whether the amended summons should be dismissed under UCPR 13.4 as frivolous or vexatious, disclosing no reasonable cause of action, or an abuse of process.' 'Whether the judicial review proceedings were commenced out of time under UCPR 59.10 and whether any extension of time had been sought or justified.' 'Whether Professor Horvath made the alleged decision to order a Schedule 1 inquiry, or whether the relevant power was vested in the New South Wales Medical Board.' 'Whether the absence of a complaint from Canberra Hospital was a jurisdictional fact or error that could invalidate an inquiry under the Medical Practice Act 1992 (NSW).' 'Whether there was any utility in granting certiorari in respect of a notice fixing the time and place of an inquiry more than 20 years earlier.' 'Whether the plaintiff had any basis to claim compensatory damages or to commence a private criminal prosecution against the defendant.']

Ratio Decidendi

The amended summons was hopeless and was dismissed because the proceedings were commenced about 22 years after the impugned notice and outside UCPR 59.10 with no extension application; Professor Horvath did not personally make the alleged decision to hold the inquiry, as the power was vested in the NSW Medical Board; the Medical Practice Act did not require a complaint as a jurisdictional fact for an inquiry into eligibility for registration; the NSW Medical Board had jurisdiction to consider eligibility for registration under the New South Wales Act; certiorari would have no utility after the time and place fixed by the notice had long passed; there had been extraordinary and...

Court Disposition

The amended summons filed 27 May 2021 was dismissed.

Orders

  • ['The amended summons filed 27 May 2021 is dismissed.' 'The defendant is to file and serve any affidavits and submissions on costs within 14 days (15 November 2021).' 'The plaintiff is to file and serve any affidavits and submissions on costs within 28 days (29 November 2021).' 'To minimise costs, the issue of costs...