Quach v New South Wales Crown Solicitor

1. [1]

   An application for a prohibition order against the New South Wales Crown Solicitor was referred to me as duty judge on 25 July 2017. Pursuant to a Summons filed on 12 July, the plaintiff seeks the following relief:

2. [2]

   The Summons sets out the grounds for the order sought as follows:

   1. (1)

      The Crown Solicitor requires the implied or express consent from the Attorney-General of New South Wales to act, and he cannot give consent because the New South Wales Crown Solicitor is “in the wrong court” because s 100 of the Health Care Complaints Commission Act 1993 (NSW) says that prosecutions can only take place in a New South Wales Local Court.

   2. (2)

      The Crown Solicitor has prosecutor’s duties and in pursuit of Solicitors’ Rule 29.1, a prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court and must seek to assist the Court with adequate submissions of law to enable the law properly to be applied to the facts.

   3. (3)

      Section 99A(2) of the Health Care Complaints Commission Act is not intended to be a lawful excuse pursuant to the High Court’s decision in Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57.

   4. (4)

      The New South Wales Crown Solicitor, as an arm of the executive government, cannot be used to interfere in the judicial function of the ACT courts in breach of the declaration of principles on judicial independence (a copy of which was appended to Dr Quach’s affidavit).

   5. (5)

      Taxpayers’ money cannot be used to prosecute a matter in the wrong court, in the wrong state or territory.

3. [3]

   The background to this particular application includes quite an extensive history of litigation between the HCCC and Dr Quach. It seems that there are proceedings in the Magistrates Court in the ACT involving HCCC employee Ms Butt, and that these proceedings were brought by Dr Quach against Ms Butt. Dr Quach was unsuccessful in those proceedings, and there is judicial review sought in respect of those ACT proceedings.

4. [4]

   An application for an identical order seeking prohibition in the same terms, but purportedly on a different basis was heard on 6 July 2017 and determined on 7 July 2017 by her Honour Justice Schmidt in Quach v New South Wales Crown Solicitor [2017] NSWSC 904. The order sought in that Summons filed 27 June 2017 was as follows:

5. [5]

   Mr Thomson, appearing for the New South Wales Crown Solicitor submitted that the Summons before me is an abuse of process as identified by Uniform Civil Procedure Rules 2005 (NSW) r 14.28 as a duplication of the proceedings and/or seeking to agitate the same issue already decided by another judge of this court.

6. [6]

   Rule 14.28 provides for the circumstances in which a court may strike out pleadings. It provides relevantly as follows:

7. [7]

   Mr Thomson submitted that pursuant to Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27, this court has, as a necessary incident of its jurisdiction, the power to control its own proceedings and procedure. He also noted the power pursuant to UCPR r 13.4 to strike out frivolous and vexatious proceedings, including proceedings that are an abuse of the process of the court.

8. [8]

   Rule 13.4 provides as follows:

9. [9]

   In the alternative, it was submitted that the Summons had no merits because:

   1. (1)

      To the extent that the plaintiff interpreted that the Crown Solicitors Office was a prosecutor, that was not correct.

   2. (2)

      The Health Care Complaints Act provisions regarding the production of documents on subpoena is not an extant issue.

   3. (3)

      The plaintiff’s arguments are misconceived as the basis seems to be a perception that the New South Wales Crown Solicitor is, in effect, a prosecutor with particular obligations of disclosure.

10. [10]

    Mr Thomson also submitted that Schmidt J in Quach v New South Wales Crown Solicitor [2017] NSWSC 904 at [16] dealt with the relevant basis upon which the Crown Solicitor could appear for the HCCC in the ACT proceedings. Section 44 of the Legal Profession Uniform Law Application Act 2014 (NSW) provides that:

11. [11]

    As stated by Schmidt J (at [17]), the Crown Solicitor is acting in the ACT in precisely the way provided for by s 44. There is no relevant preclusion.

12. [12]

    Dr Quach appeared for himself and made a number of oral submissions, none of which had any merit, and were based on a misunderstanding of the law. They were also repetitive of matters already agitated before Schmidt J.

13. [13]

    The Summons is an abuse of process and the order sought in the Summons is refused.

Orders

1. [14]

   Accordingly, I order as follows:

   1. (1)

      The Summons filed by the plaintiff dated 12 July 2017 is dismissed.

   2. (2)

      The plaintiff is to pay the defendant’s costs associated with the Summons.