Quach v Marks [2020] NSWSC 524

Quach v Marks [2020] NSWSC 524

The summons related to the subject matter of the NCAT professional misconduct proceedings and related Court of Appeal proceedings covered by the Court of Appeal's vexatious proceedings order of 20 October 2017. Because Mr Quach instituted the summons without leave, it contravened s 13(1) of the Vexatious Proceedings Act 2008 (NSW), was stayed from inception by s 13(2), and was taken to have been dismissed from 30 March 2020. In any event, the summons was frivolous and vexatious because there was no enforceable undertaking by NCAT, any such undertaking could not found contempt by Marks ADCJ, and there was no legal basis for this Court to direct Marks ADCJ to provide an NCAT transcript.

Jurisdiction
Australia
Judgment Date
11 May 2020
Procedural Posture
Summons Alleging Contempt / Procedural Ruling on Whether Leave Was Required Under a Vexatious Proceedings Order to Institute the Proceeding
Outcome
Proceeding declared instituted in contravention of s 13(1) of the Vexatious Proceedings Act 2008 (NSW), stayed from inception, and taken to have been dismissed with effect from 30 March 2020; plaintiff ordered to pay costs.
Legal Topics
['vexatious Proceedings' 'leave to Institute Proceedings' 'contempt' 'stay and Dismissal' 'joinder' 'costs']
['civil Procedure'] ['vexatious Proceedings' 'leave to Institute Proceedings' 'contempt' 'stay and Dismissal' 'joinder' 'costs']

Case Brief

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Procedural Posture

Summons Alleging Contempt / Procedural Ruling on Whether Leave Was Required Under a Vexatious Proceedings Order to Institute the Proceeding

Legal Issues

  1. 1 ['Whether the plaintiff required leave under the Vexatious Proceedings Act 2008 (NSW) to institute the summons against the defendant.' 'Whether the summons was instituted in contravention of s 13(1) of the Vexatious Proceedings Act 2008 (NSW).' 'Whether there was any prima facie foundation for the allegations of contempt and other relief sought.' 'Whether the Attorney General should be permitted to file a notice of motion seeking joinder as second defendant.']

Ratio Decidendi

The summons related to the subject matter of the NCAT professional misconduct proceedings and related Court of Appeal proceedings covered by the Court of Appeal's vexatious proceedings order of 20 October 2017. Because Mr Quach instituted the summons without leave, it contravened s 13(1) of the Vexatious Proceedings Act 2008 (NSW), was stayed from inception by s 13(2), and was taken to have been dismissed from 30 March 2020. In any event, the summons was frivolous and vexatious because there was no enforceable undertaking by NCAT, any such undertaking could not found contempt by Marks ADCJ, and there was no legal basis for this Court to direct Marks ADCJ to provide an NCAT transcript.

Court Disposition

Proceeding declared instituted in contravention of s 13(1) of the Vexatious Proceedings Act 2008 (NSW), stayed from inception, and taken to have been dismissed with effect from 30 March 2020; plaintiff ordered to pay costs.

Orders

  • ['Leave is granted to the Attorney General to file in court the notice of motion seeking leave to be joined as second defendant to the proceedings and the affidavit in support affirmed by Ms Tram Nguyen on 11 May 2020.' "Declare that the proceeding commenced by the filing of the plaintiff's summons herein has been...