Quach v Health Care Complaints Commission (No 2)

1. [1]

   On 18 March 2018, I heard argument in respect of a summons filed by the plaintiff seeking various orders against the Health Care Complaints Commission. On that day, I made orders dismissing the plaintiff’s summons and ordering the plaintiff to pay the defendant’s costs.

2. [2]

   I made that decision because it was evident that the summons was an abuse of process, being substantially the same as a summons already dismissed in Quach v New South Wales Crown Solicitor [2017] NSWSC 991 by myself and by Schmidt J in Quach v New South Wales Crown Solicitor [2017] NSWSC 904.

3. [3]

   My reasons were published on 3 April 2018: Quach v Health Care Complaints Commission [2018] NSWSC 402.

4. [4]

   On 14 April 2018, the plaintiff (Mr Quach) filed a notice of constitutional matter, purporting to give notice that the proceedings involved a matter arising out of the Constitution or involving its interpretation within the meaning of s 78B of the Judiciary Act 1902 (Cth).

5. [5]

   Rule 1.22 of the Uniform Civil Procedure Rules 2005 prescribes that notice of a constitutional matter under s 78B of the Judiciary Act needs to be provided:

6. [6]

   Section 78B of the Judiciary Act 1903 (Cth) provides:

7. [7]

   As set out in Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151 at [14] by French J:

8. [8]

   Without repeating the content of the notice filed, suffice to say the matters referred to within it are misconceived and do not trigger any requirement of the Court to comply with the requirements of s 78B of the Judiciary Act. I will return to that later in the judgment. A copy of the Notice to is appended to this judgment: Annexure A - Notice of Constitutional Matter (246 KB, pdf)

9. [9]

   The facts which Mr Quach says show that the matter is one to which sub-rule (1) applies, are also contained in the Notice. Again, they do not advance any basis upon which a determination could be made that the proceedings involve “a matter arising under the Commonwealth Constitution or involving its interpretation”.

10. [10]

    In any event, at the time of the filing of the notice, there were no “proceedings pending in a Court”, because by then, the proceedings had already been dismissed by the orders I made on 19 March 2018 that were the subject of a judgment published on 3 April 2018.

11. [11]

    As I apprehend it, the plaintiff’s position is that he forwarded the Notice to the Court on 29 March 2018. This is 10 days after the orders dismissing the proceedings had been made in Mr Quach’s presence after hearing oral argument in open Court.

12. [12]

    The notice was apparently forwarded to the attention of my chambers. The court file suggests that the documents were then returned to the registry because the proceedings had already been dismissed with costs, and in any event the rules require any such notice, or indeed any pleading or notice of motion in proceedings to be filed (UCPR r 1.22(1)).

13. [13]

    Quite apart from the fact that I had dismissed the proceedings by orders on 19 March 2018, these proceedings had been the subject of list management by the Registrar prior to that. When the matter was before the Registrar on 13 February 2018, a timetable was set for exchange of evidence and submissions. There was no mention at that time that there was a constitutional matter to raise. Mr Quach is thus also in breach of the requirements of r 1.23.

14. [14]

    It became evident from the oral submissions that Mr Quach saw himself as complying with r 1.23 by the filing of the Notice and the forwarding of it to the Attorneys-General and attaching their responses, as he has done in his affidavit of 13 June 2018 (filed 14 June 2018).

15. [15]

    He proceeded on the basis that he was entitled to treat the listing on 20 June 2018 as a “referral to the Court for directions” as envisaged by r 1.23(2), despite the fact being that the listing was only made to consider the defendant’s gross sum costs order application which followed from the dismissal and costs order made on 19 March 2018.

16. [16]

    Mr Quach submitted that because he had mentioned (irrelevantly) s 109 of the Constitution and s 78B of the Judiciary Act in the proceedings I determined on 19 March 2018, the Court was “on notice” of the constitutional matter.

17. [17]

    Paragraphs [12]-[16] and [27]-[29] of my judgment of 3 April 2018 dealt with the argument purporting to be a constitutional point in the following fashion:

18. [18]

    I am in no doubt that the matters raised in the Notice of Constitutional Matter (or any that were mentioned in the summons) are misconceived.

19. [19]

    Having assessed the Notice of Constitutional Matter, it is my view that it falls into the category of trivial, unarguable, frivolous and vexatious. It is based upon a misapprehension and misunderstanding of the law quoted within it. The timing and context in which it was raised suggests that its purpose was to delay and/or derail the proceedings I had already determined. To that extent the Notice amounts to a further abuse of process.

20. [20]

    Additionally, there has been inadequate and late compliance with the Rules requiring Notice and its service. Even if the proceedings were still on foot, which they are not, I would refuse to extend time to allow these matters, which are misconceived and an abuse of process, to be pursued.

21. [21]

    As properly submitted on behalf of the defendant, s 56 of the Civil Procedure Act 2005 (NSW) requires that matters be disposed of in an efficient manner and in a way which does not incur unnecessary costs. Section 56 provides relevantly as follows:

22. [22]

    The solicitor for the defendant argued that this Notice was served too late, it was not in compliance with the rules, and the defendant has a right to have the proceedings remain determined.

23. [23]

    I accept those submissions, and to the extent necessary in the circumstances, the Notice is dismissed as unarguable, vexatious and an abuse of process.

Gross sum costs order

1. [24]

   The defendant’s notice of motion for a gross sum costs order was returnable on 20 June 2018.

2. [25]

   Section 98(4) of the Civil Procedure Act gives the Court power to order that a party is entitled to a specified gross sum instead of assessed costs. Section 98(4) provides as follows:

3. [26]

   As identified by von Doussa J in Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120:

4. [27]

   The Court should only make the gross sum costs order if it considers that it can do so fairly between the parties and that it has sufficient confidence that it is able to arrive at an appropriate sum: see Idoport v National Australia Bank [2007] NSWSC 23 at [9]. The approach to estimation of costs should be logical, fair and reasonable: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 123. If the Court is persuaded to make a gross sum costs order then the Court may adopt a broad-brush approach: see Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at [22].

5. [28]

   In Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [8] Campbell AJA accepted that situations where it might, depending on the individual circumstances, be appropriate to make a gross sum costs order would include:

   1. (1)

      Simple cases where there would be utility in “cutting the Gordian knot” of protracted fights about costs: see Keen v Telstra Corporation Ltd (No 2) [2006] FCA 930 at [5];

   2. (2)

      Where the amount in issue is a modest sum and it would not be appropriate to require a further process of assessment to be undertaken: see Kiwi Munchies Pty Ltd v Stern [2006] NSWSC 433; and

   3. (3)

      Where the costs assessment is likely to be a protracted and expensive exercise and the other party is unlikely to pay: see Leary v Leary [1987] All ER 261 at 266.

The evidence

1. [29]

   The affidavit of Mr Thomson, sworn 20 April 2018, describes his position as Special Counsel in the Crown Solicitor’s Office. A schedule of the costs charged by the Crown Solicitor in undertaking the legal work on behalf of the defendant was provided, indicating the total fees billed were slightly over $6,600. No disbursements had been incurred. There were no fees charged for the preparation of the gross sum costs order application, and it was submitted by the solicitor for the defendant that each party should bear its own costs of the gross sum costs order application.

2. [30]

   The affidavit appended the Crown Solicitor’s Office standard terms of engagement which set out the basis of charging, confirming that the Crown Solicitor’s fees and disbursements attract GST except for Attorney-General’s Legal Fund work and agency work for agencies grouped as part of the Department of Justice GST Group.

3. [31]

   The memorandum of costs itemised work done in defence of the plaintiff’s summons. Counsel was not retained and Mr Thomson, as an in-house specialist advocate, carried out the preparation and drawing of relevant submissions and documents, as well as the appearance work which led to a significant saving.

Submissions of the applicant

1. [32]

   Submissions filed on behalf of the applicant proposed a rounding down of the amount set out in the memorandum of costs by a sum of more than 50% to a figure of $3,000. This seems to me to be an entirely reasonable approach, and a modest sum, particularly in circumstances where the defendant had no option but to retain a solicitor and/or special counsel or counsel to appear to defend the summons.

2. [33]

   It is appropriate that the defendant seek to avoid further protracted litigation in relation to costs. This is particularly so in circumstances where there have been previous proceedings filed by Mr Quach repeatedly canvassing almost identical subject matter. Mr Quach has filed and lost 10 proceedings before this Court and the Court of Appeal. His approach, to engage in repetitive attempts to re-agitate determined issues, has led to a declaration that he be determined a vexatious litigant in respect of those proceedings: see Quach v Health Care Complaints Commission [2018] NSWSC 402 at [1].

3. [34]

   It was submitted that this Court should make the orders sought, given the modest amount involved, the straightforwardness of the issues determined at hearing, and the generous discount of over 50% which leads to a modest and reasonable sum of $3,000.

Mr Quach’s submissions

1. [35]

   The submissions made by Mr Quach circled back to matters already determined by me on 18 March 2018. He repeated, with slight variations, the matters listed in the purported constitutional notice which bear no relevance to the discretion available under s 98(4) of the Civil Procedure Act to make a gross sum costs order.

2. [36]

   The submissions seemed to be:

3. [37]

   An additional matter was raised in the plaintiff’s affidavit of 15 June 2018. This seems to be based on a misconception of the role of the Attorney-General in the Attorney’s decision not to intervene in the proceedings. By letter of 7 June 2018 directed to Mr Quach, the New South Wales Attorney-General indicated that he did not wish to intervene in these proceedings, but if the matter proceeded to appeal, including any application for leave to appeal, or if the matter is removed to the High Court, then notice was required pursuant to s 78B so that the Attorney-General could reconsider the question of intervention.

4. [38]

   As explained to Mr Quach in an exchange with the bench, this letter does not affect the retainer of Mr Thomson from the Crown Solicitor’s Office to pursue the interests of his client, the Health Care Complaints Commission. The letter simply relates to a separate decision by the NSW Attorney-General not to intervene in a different capacity associated with the purported constitutional question.

Decision regarding gross sum costs

1. [39]

   I reject the plaintiff’s arguments as misconceived. I find that a gross sum costs order is appropriate and likely to avoid further argument, expense, delay and aggravation. The approach to assessment of the amount involved is logical, fair and reasonable and the sum of $3000 is an entirely fair and reasonable one.

Orders

1. [40]

   For the reasons set out above, the Court made the following orders on 18 June 2018:

   1. (1)

      Pursuant to s 98(4) of the Civil Procedure Act 2005, the plaintiff is to pay the defendant’s costs in a specified gross sum.

   2. (2)

      The gross sum subject to the above order is the sum of $3,000.

   3. (3)

      Each party is to pay its own costs of today.