Quach v Health Care Complaints Commission

1. [1]

   Mr Quach is a former medical practitioner. In April 2015, his practicing certificate was cancelled after findings of impairment and lack of competence. Those proceedings led to no less than 10 proceedings being commenced and pursued by Mr Quach in the NSWCA. The last of these, Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267, concluded with orders (amongst others) declaring Mr Quach a vexatious litigant in respect of the subject matter of those (and earlier) CA proceedings.

2. [2]

   Against this background on 8 January 2018, Mr Quach filed a summons seeking the following order:

3. [3]

   Although worded differently this is the same or very similar to prohibition sought by Mr Quach from this Court twice in 2017.

4. [4]

   In a summons filed on 27 June 2017 the order sought was dismissed with costs on 6 July 2017 by Schmidt J (Quach v New South Wales Crown Solicitor [2017] NSWSC 904) was worded as follows:

5. [5]

   Six days later, on 12 July 2017 Mr Quach filed another summons. The order sought was worded as follows:

6. [6]

   That summons was dismissed as an abuse of process: Quach v New South Wales Crown Solicitor [2017] NSWSC 991.

7. [7]

   The current summons too is an abuse of process and I have dismissed it with costs for the reasons which follow.

Statutory framework

1. [8]

   The Health Care Complaints Act 1993 (NSW) provides the machinery by which the HCCC can receive and deal with complaints regarding health care.

2. [9]

   The section salient to this application are as follows:

3. [10]

   I cite the legislative framework for background. None of this machinery and none of these legislative provisions, when properly considered in context, are provisions which inform any consideration as to whether the HCCC should be allowed to authorise or instruct the New South Wales Crown Solicitor to act on its behalf.

The current application

1. [11]

   The ground stated for the order set out in the summons is worded as follows:

2. [12]

   In oral submissions Mr Quach, who appeared for himself, made the following points. First, he said that s 3(1) of the Health Care Complaints Act limited the jurisdiction of the Health Care Complaints Commission (“HCCC”) to proceedings in New South Wales, not proceedings in the ACT. By its terms, s 3 of the Act precludes the HCCC from being instructed in proceedings in the ACT. It appears that this submission was directed to a focus Mr Quach has regarding proceedings he himself commenced in the Supreme Court in the ACT against a solicitor employed by the HCCC. These proceedings were all determined unfavourably to him, most recently in Quach v RU (No 2) [2017] ACTSC 234.

3. [13]

   In support of his argument, Mr Quach said s 106 and s 122 of the Commonwealth Constitution made it “very clear” that the Australian Capital Territory and New South Wales were different jurisdictions. He said that the HCCC is bound by its statue and can only act in the State of New South Wales.

4. [14]

   In further support of this argument Mr Quach said that the Service and Execution of Process Act 1992 (Cth) did not include any provisions for subpoenas for production of documents. Again, this appears to focus on the ACT proceedings which deal with a subpoena Mr Quach issued to the HCCC which was the subject of a determination by Justice Penfold on 21 August 2017: Quach v RU (No 1) [2017] ACTSC 233.

5. [15]

   Mr Quach relied upon the decision of Adamson J in Australian Vaccination Network Inc v Health Care Complaints Commission [2012] NSWSC 110 at [51] as illustrating the approach that was submitted I should take in dealing with his application. The argument rested upon [41] of her Honour’s judgment which dealt with the statutory jurisdiction of the HCCC to carry out certain acts and the problem that arose in that case, where there had not been a formal complaint made to activate jurisdiction.

6. [16]

   This argument is entirely misconceived. The conclusions reached in that judgment are irrelevant to Mr Quach’s summons. The misapplication of this decision formed the basis for Mr Quach’s request for a declaration that the HCCC could not “act” in the ACT.

Evidence and submissions of the HCCC

1. [17]

   The HCCC relied upon an affidavit of Mr Thomson who also appeared on behalf of the HCCC. This affidavit provided necessary contextual background. Mr Quach had filed an application for a Personal Protection Order in the ACT Magistrates Court against a solicitor employed by the New South Wales HCCC – Ms Butt. That application was made pursuant to the provisions of the Domestic Violence and Protection Orders Act 2008 (ACT) prompted, it seems, by Ms Butt writing to Mr Quach in relation to costs due to it in respect of prior proceedings between him and the HCCC.

2. [18]

   In March 2016 the NSW Crown Solicitor received instructions from the HCCC to act for it in relation to that application. Summary dismissal was sought and granted on 13 April 2016. On 5 May 2016, Mr Quach filed a Notice of Appeal in the ACT Supreme Court and in the context of those proceedings Mr Quach served a subpoena upon the HCCC.

3. [19]

   A senior legal officer at the HCCC, Michael Darmody wrote and advised that s 99A(2) of the Health Care Complaints Act provided the basis upon which the Commission would not produce the documents sought.

4. [20]

   Mr Quach filed an application in the ACT Supreme Court seeking orders that the HCCC produce the documents and claiming that the HCCC was in contempt for a failing to produce. That application was heard in April 2017 together with Mr Quach's application for judicial review of the summary dismissal granted in April 2016: Quach v RU (No 1) [2017] ACTSC 233.

5. [21]

   Mr Thomson raised a number of bases upon which Mr Quach’s summons should be dismissed. First and foremost, there is no evidence that there is any prosecution by the HCCC for an offence under s 99A of the Health Care Complaints Act either on foot or in contemplation against Mr Quach.

6. [22]

   Second, it is difficult to conceive of how any such offence would arise in relation to Mr Quach.

7. [23]

   Third, the letter referred to by Mr Quach (and attached to his summons) from Mr Darmody of the HCCC related to a subpoena issued by Mr Quach in other proceedings which was found to be ineffective in the judgment in August last year already referred to.

8. [24]

   Fourth, s 44(1)(d) of the Legal Profession Uniform Law Application Act 2014 (NSW) provides that the Crown Solicitor may act for a body established by an act or other law of New South Wales. This would include the HCCC. (This issue was dealt with in both judgments of Schmidt J and Lonergan J in July 2017).

9. [25]

   Fifth, the order sought by Mr Quach has already been refused in two substantially similar applications. These proceedings are therefore an abuse of the process of the court. Discretion should not be exercised to grant prohibition as the relief sought is futile and serves no useful purpose.

Decision

1. [26]

   I accept each of the submissions raised on behalf of the HCCC.

2. [27]

   I have already referred to the previous proceedings commenced by summons by Mr Quach. The current proceedings are in effect a repetition of those and are therefore an abuse of process. The arguments raised regarding the Constitution are irrelevant and misplaced. The reliance upon Gedeon v Commissioner for the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 and Australian Vaccination Network Inc v Health Care Complaints Commission [2012] NSWSC 110 are misplaced.

3. [28]

   None of the arguments raised by Mr Quach have any merit or persuasive effect.

4. [29]

   The relief sought by Mr Quach is misconceived and the summons is dismissed.

Costs

1. [30]

   Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) provides as follows:

2. [31]

   Costs should follow the event. This is particularly so where the Summons filed has been found to be an abuse of process.

3. [32]

   Mr Quach argued that I had no power to make a costs order relying upon [41.1] of Re JJT; Ex Parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44:

4. [33]

   As explained to Mr Quach that judgment related to circumstances that arose in a case where there was arguably no statutory basis upon which to make a costs order.

5. [34]

   Section 98 of the Civil Procedure Act 2005 (NSW) provides this court with the power to make an order to determine by whom, to whom and to what extent the costs are to be paid.

6. [35]

   Mr Quach seemed to be labouring under the misapprehension that the power for a costs order must come from the Health Care Complaints Act. This is not correct. There is power to make a costs order pursuant to the Civil Procedure Act and I order that Mr Quach pay the defendant’s costs of these proceedings.

7. [36]

   Mr Thomson foreshadowed that he may be instructed to seek a gross sum costs order.

8. [37]

   I have listed the matter for Directions on 20 April 2018 at 9:00 am to make directions in relation to any such application.

   1. (1)

      I dismiss the Summons filed on 8 January 2018.

   2. (2)

      Pursuant to s 98(1) of the Civil Procedure Act, I order that the Plaintiff pays the costs of the Defendant.

   3. (3)

      I list the matter for directions on 20 April 2018 at 9:00 am for directions in relation to any further costs order to be sought by the Defendant.