Quach v New South Wales Crown Solicitor

Yesterday, sitting as duty judge, I refused to make the order sought by Dr Quach in a summons filed on 27 June 2017 that:

The reason for that conclusion was that nothing which Dr Quach had advanced, established a basis for concluding that there is anything inappropriate in the Crown Solicitor appearing for the Commission in the ACT Supreme Court proceedings to which the order he sought was directed.

As I understood the submissions which the parties advanced, there has been a deal of litigation between Dr Quach, the Commission and Ms Butt, an employee of the Commission, including in this State, in the New South Wales Civil and Administrative Tribunal and the Court of Appeal and in the ACT, in the Magistrates Court, the Supreme Court and the Court of Appeal.

Dr Quach relied on an affidavit in which he deposed that the NSW Crown Solicitor has been representing the Commission “in the ACT Courts in Quach v Butt”. Annexed to the affidavit was one page of the transcript of proceedings before the ACT Supreme Court in which Mr Thompson, a solicitor employed by the Crown Solicitor, appeared to represent the Commission and Ms Butt. There Dr Quach questioned Mr Thompson’s “standing” to appear for Ms Butt.

The proceedings on foot in the ACT Supreme Court were brought by Dr Quach against Ms Butt, after proceedings which he had brought against her in the ACT Magistrates Court had not resulted in orders with which he was satisfied. That followed orders, including as to costs, made against him in proceedings which the Commission brought before the Civil and Administrative Tribunal. He is seeking judicial review of those orders.

Penfold J is presiding over the ACT Supreme Court proceedings. Her Honour is reserved on what is there in issue, apart it seems, from an issue concerning the Commission’s failure to produce documents to that Court on subpoena. That issue is due to be heard on Monday next.

Dr Quach explained that he has raised his objection to the Commission being represented, as it is, by the Crown Solicitor in those proceedings. On his submissions, her Honour has taken the view that the basis upon which he advances his complaints in this Court, are not matters over which the ACT Supreme Court has jurisdiction and so he commenced these proceedings.

That is not disclosed by the transcript which he relied on. There her Honour took the view that Mr Thompson having instructions to appear for Ms Butt, had standing. That was a matter for her Honour to determine.

Dr Quach advanced in this Court his case in various ways, placing reliance on:

These submissions could not be accepted.

The Commission is established as a body corporate by s 75 of the Health Care Complaints Act. It being legally represented by the Crown Solicitor in the proceedings before the ACT Supreme Court, where the question of whether it is in contempt of that Court is to be determined, can involve no conceivable interference with the independence of the judiciary.

Both Ms Butt and the Commission are entitled to have legal representation in those proceedings. That it is the Crown Solicitor who provides that representation makes neither the Crown Solicitor, nor the Attorney General of this State, a party to those proceedings. Nor does it involve any interference with the administration of justice in the ACT.

The Director of Public Prosecutions Act provides no basis for the order which Dr Quach sought. It is concerned with the appointment and functions of the Director of Public Prosecutions and by Part 4 of that Act, with the interaction between the Director and the Attorney General. The Act does not deal at all with the Office of the Crown Solicitor, or with the interaction between the Attorney General and that Office, or between either of them with the Commission. Section 28 provides:

Section 28 says nothing about the Crown Solicitor representing parties such as the Commission or Ms Butt in the ACT Supreme Court proceedings. In any event, it is concerned with the Director exercising a function “inconsistent with the manner in which the Attorney General has, after the commencement of this section, already exercised a function in relation to the same matter”. On the case which Dr Quach advanced, neither the Director, nor the Attorney General have played any role in the ACT proceedings. It follows that no such inconsistency can conceivably arise.

The functions and powers of the Crown Solicitor are dealt with in various other legislation, including in the Crown Proceedings Act 1988 (NSW) and the Legal Profession Uniform Law Application Act 2014 (NSW). Neither party made reference to the latter Act, but its terms support the conclusions that I had otherwise reached.

The Crown Solicitor’s appearance for the Commission in the ACT proceedings is in the role of a solicitor, not as a party. Section 44 of the Legal Profession Uniform Law Application Act provides that:

On the case which Dr Quach advanced, the Crown Solicitor is providing representation of the kind for which this section makes express provision, both for the Commission and Ms Butt. Contrary to his case, the roles there provided for do not preclude the Crown Solicitor representing the Commission on the question of whether the failure to provide documents on subpoena involved a contempt of the ACT Supreme Court.