Quach v NSW Health Care Complaints Commission (No 5)

HIS HONOUR:

The Summons goes on to set out the following grounds in support of the order sought.

The Summons with the order sought and the grounds relied upon in its present form does not operate as a stand alone document and is opaque as to its meaning and purpose. Accordingly, it needs to be placed in context. That context is provided by an affidavit of Brett Thomson, filed 21 September 2018, on behalf of the defendant. Mr Thomson is Special Counsel employed in the Office of the Crown Solicitor’s Office, who has the carriage of this matter on behalf of the defendant. I am satisfied that the material contained in the affidavit is accurate and provides the background and context in which these proceedings have been brought.

The plaintiff was a medical practitioner who practised in Sydney and the ACT. The HCCC lodged two Notices of Complaint in the NSW Civil and Administrative Tribunal (NCAT) in relation to his care and treatment of patients in Sydney in 2007 and 2012.

On 5 February 2015, NCAT made findings of unsatisfactory professional conduct and professional misconduct against him. NCAT also found that the plaintiff suffered from an impairment being a narcissistic personality disorder. NCAT found that the plaintiff was not competent to practise medicine due to his impairment.

The plaintiff sought judicial review of this decision. On 24 March 2015, the NSW Court of Appeal dismissed those proceedings with costs (Quach v NSW Civil and Administrative Tribunal [2015] NSWCA 63).

On 13 August 2015, the High Court dismissed two applications by the plaintiff seeking special leave to appeal from the decision of the Court of Appeal (Quach v NSW Civil and Administrative Appeals Tribunal and Anor; Quach v NSW Health Care Complaints Commission [2015] HCASL 131).

On 21 April 2015, NCAT made orders cancelling the plaintiff’s registration as a medical practitioner. The orders prevented him from applying to review the cancellation of his registration for seven years and prohibited him from providing any health services on a public, private or volunteer basis (Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32).

Since those decisions, the plaintiff has unsuccessfully sought to re-agitate the same matters in the Court of Appeal.

On 20 October 2017, the Court of Appeal delivered a judgment making orders, inter alia, declaring the plaintiff a vexatious litigant in respect of those and earlier proceedings. The decision is reported as Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267.

On 26 February 2016, the plaintiff made an application in the Magistrates Court of the ACT for a Personal Protection Order against a legal officer (Ms Butt) employed by the HCCC. The application was pursuant to the provisions of the Domestic Violence and Protection Orders Act 2008 (ACT) (as it then was). The application was made as a result of the two letters sent to the plaintiff by the legal officer seeking to enforce costs orders made in favour of the HCCC. The Crown Solicitor acted for the legal officer in those proceedings.

On 13 April 2016, his Honour Magistrate Morrison summarily dismissed the plaintiff’s application on the basis that no reasonable cause of action was disclosed. The plaintiff appealed from that dismissal to the Supreme Court of the ACT. On 21 August 2017, her Honour Justice Penfold dismissed the appeal with costs: (Quach v RU (No 2) [2017] ACTSC 234 (RU was a pseudonym for Ms Butt)).

In the course of the appeal proceedings in the Supreme Court of the ACT, the plaintiff issued a subpoena to the HCCC. The letter to the plaintiff from Michael Darmody, which is Annexure A to the plaintiff’s affidavit sworn on 10 July 2018 in these proceedings, was sent in response to that subpoena. That letter relevantly stated:

On 21 August 2017, Penfold J gave a separate judgment regarding the subpoena finding, inter alia, that the subpoena had not been served effectively and was not therefore effective (Quach v RU (No 1) [2017] ACTSC 233).

On 27 June 2017, the plaintiff filed a Summons in the NSW Supreme Court (2017/192106) seeking a “prohibition order” against the Crown Solicitor from representing the HCCC in the proceedings then on foot in the ACT. On 6 July 2017, her Honour Justice Schmidt declined to make the order, and on 7 July 2017 delivered reasons in which her Honour ordered costs against the plaintiff (Quach v NSW Crown Solicitor [2017] NSWSC 904).

On 12 July 2017, the plaintiff filed a Summons (2017/211987) seeking a “prohibition order” against the Crown Solicitor which would prohibit it from representing the HCCC in the prosecution of an offence under s 99A(2) of the Health Care Complaints Act 1993 (HCC Act) in the proceedings in the ACT. On 26 July 2017, her Honour Justice Lonergan delivered judgment dismissing the proceedings as an abuse of process and ordering the plaintiff to pay the defendant’s costs (Quach v NSW Crown Solicitor [2017] NSWSC 991).

On 1 August 2017, the plaintiff filed a third Summons (2017/234146) seeking a “prohibition order” preventing the Crown Solicitor from representing the HCCC in Quach v Butt in the ACT Supreme Court and preventing the HCCC from prosecuting an offence under s 99A(2) of the HCC Act. On 10 August 2017, her Honour Justice Wilson dismissed those proceedings as an abuse of process and ordered the plaintiff to pay the defendant’s costs in that matter Michael Van Thanh Quach v Crown Solicitors Office (Supreme Court (NSW), 10 August 2017, unreported).

On 8 January 2018, the plaintiff filed a fourth Summons (2018/7882) seeking a “prohibition order” against the HCCC prohibiting it from instructing the Crown Solicitor to bring a prosecution, pursuant to s 99A(2) of the HCC Act. On 19 March 2018 Lonergan J dismissed the Summons as an abuse of process. Her Honour delivered reasons on 3 April 2018 (Quach v Health Care Complaints Commission [2018] NSWSC 402).

On 18 June 2018 Lonergan J made an order that the plaintiff pay the defendant’s costs on a gross sum basis and delivered reasons on 31 August 2018 (Quach v Health Care Complaints Commission (No 2) [2018] NSWSC 1341).

The plaintiff’s Summons should be dismissed pursuant to either r 13.4 or r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).

Those rules relevantly provide:

By reference to those rules, the plaintiff’s Summons is clearly an abuse of process in that this is the fourth occasion that the plaintiff has sought substantially the same or similar order which the Court has refused to make on three previous occasions. The reason for why that is so was succinctly set out by Lonergan J in Quach v Health Care Complaints Commission [2018] NSWSC 402. I agree with her Honour’s findings to that effect and I gratefully adopt her reasons:

Mr Quach has followed the same approach as was rejected by Lonergan J in these proceedings. He has sought, in effect, the same relief as in the earlier proceedings in this Court but has purported to advance slightly different reasons for why that relief should be granted. That has never been a basis for bringing repetitive claims in circumstances where the first claim has been rejected, let alone the present situation where three previous claims for substantially the same relief have been rejected.

The position was succinctly summarised by Gleeson JA (with whom Simpson JA and Sackville AJA agreed) in the most recent Court of Appeal decision (Quach v NSW Health Care Complaints Commission; NSW Civil and Administrative Tribunal [2017] NSWCA 267) where his Honour said:

That is sufficient to deal with the matter.

Apart from that consideration, the grounds apparently relied upon by the plaintiff are discursive, irrelevant, confusing and wrong.

The “Grounds for Summons” are divided into twelve points. Points I-V and VIII-XI purport to raise constitutional issues and reference is made to s 78B of the Judiciary Act 1903 (Cth) and ss 73,76, 109 and 125 of the Commonwealth of Australia Constitution Act (1900) (Cth). As is clear from the affidavit of Mr Thomson and the background to these proceedings, those constitutional issues simply do not arise. The proceedings in the ACT were initiated by the plaintiff. No issue of separation of powers arises. Both Ms Butt and the HCCC were entitled to have legal representation in the ACT proceedings. Just because it was the Crown Solicitor who provided that representation did not make either the Crown Solicitor nor the Attorney-General of NSW a party to the proceedings. Nor was there any interference with the administration of justice in the ACT.

The Crown Solicitor’s appearance for the HCCC and Ms Butt in the ACT proceedings was as a solicitor, not as a party. Section 44 of the Legal Profession Uniform Law Application Act 2014 (NSW) provides for such representation.

Implicit in Mr Quach’s oral submissions was a misapprehension that the mere raising of a s 78B point would compel the court in which the matter was raised to refer the matter to the High Court and not deal with the matter itself. That, of course, is incorrect. In that regard, the observations of French J in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd and Others [1999] FCA 1151 at [14] are apposite:

Accordingly, it is clear from their form and content that the grounds purporting to raise constitutional issues are misconceived and do not need to be referred to the High Court.

There is no substance in Ground VI. Mr Quach was prepared to accept that the Crown Solicitor could appear for the HCCC in civil proceedings but not in criminal proceedings. He characterised the proceedings brought against him by the HCCC as criminal proceedings and specifically referred to s 99A(1) of the HCC Act. The difficulty for Mr Quach is that the NCAT proceedings were not criminal but civil disciplinary proceedings. His reference to and reliance on a “prosecution” pursuant to s 99A(1) of the HCC Act is also misconceived. There was never a prosecution brought against him under that section. All that occurred was that when he issued a subpoena to the ACCC, a senior officer of the ACCC responded by refusing to produce the documents sought and in doing so relied upon the provisions of s 99A(2) of that Act.

In any event, there is no limitation under s 44 of the Legal Profession Uniform Law Application Act which would prevent the Crown Solicitor acting for one of the specified organisations in criminal proceedings as well as civil proceedings. Accordingly, Ground VI is without merit.

Grounds VII and XII repeat the plaintiff’s misconception relating to ss 99A(1) and 99A(2) of the HCC Act. Those grounds are also without merit.

In the course of oral submissions, it was put to Mr Quach that he was bound by the earlier decisions of this Court and of the ACT Supreme Court. His response to that was to submit that he could ignore orders of the Supreme Court if, in his opinion, the decision of the Court was inconsistent with the legislation. The plaintiff submitted that in those circumstances the order of the Court was a nullity and could be ignored. I understand the reference to “legislation” to be a reference to the HCC Act.

The proposition relied upon by the plaintiff is wrong and was decisively rejected by the High Court in State of NSW v Kable [2013] HCA 26; 252 CLR 118.

Once that proposition is rejected, as it must be, the misconception giving rise to these proceedings becomes obvious. There are no longer any extant proceedings in the ACT involving the plaintiff, nor are there such proceedings in NSW, except for this application. Accordingly, the whole question of the legal representation for the HCCC, insofar as that representation involves proceedings brought either for or against the plaintiff, is moot. That is yet another reason why this Summons should be dismissed.

The orders which I propose are: