Quach v New South Wales Crown Solicitor [2017] NSWSC 904

Supreme Court New South Wales

Medium Neutral Citation: Quach v New South Wales Crown Solicitor [2017] NSWSC 904 Hearing dates: 6 July 2017 Date of orders: 06 July 2017 Decision date: 07 July 2017 Jurisdiction: Common Law Before: Schmidt J Decision: Order sought not granted. Catchwords: ADMINISTRATIVE LAW – prohibition order sought against Crown Solicitor appearing for the New South Wales Health Care Complaints Commission in the ACT Supreme Court– whether Crown Solicitor had standing to appear - order sought not granted Legislation Cited: Crown Proceedings Act 1988 (NSW) Director of Public Prosecutions Act 1986 (NSW) Health Care Complaints Act 1993 (NSW); Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: Annetts v McCann (1990) 170 CLR 596; [1900] HCA 57 Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 Category: Principal judgment Parties: Dr Michael Van Thanh Quach (Plaintiff) New South Wales Crown Solicitor (Defendant) Representation: Counsel: Mr J Harris (Defendant)

Solicitors: Dr Quach, unrepresented (Plaintiff) Crown Solicitor's Office (Defendant) File Number(s): 2017/192106 Publication restriction: None

Judgment 1. Yesterday, sitting as duty judge, I refused to make the order sought by Dr Quach in a summons filed on 27 June 2017 that: "1 Prohibition Order against the New South Wales Crown Solicitor from representing the New South Wales Health Care Complaints Commission in Quach v Butt in the ACT Supreme Court, on the grounds that it is inconsistent with the function of the Attorney General for New South Wales, pursuant to Section 28 of the Director of Public Prosecution Act 1986 (NSW), "28 Attorney General's functions to prevail (1) The Director shall not, without the consent of the Attorney General, exercise a function in a manner that is 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."" 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. Dr Quach advanced in this Court his case in various ways, placing reliance on: Section 28 of the Director of Public Prosecutions Act 1986 (NSW), which he argued excludes the exercise of statutory power of the Executive Government that is inconsistent with the functions of the Attorney General; The fact that it is the Minister for Health, not the Attorney General who has responsibility for the Commission, which is regulated by the Health Care Complaints Act 1993 (NSW); which, it was submitted, raised a question of law as to whether the Attorney General could take responsibility for the Commission, by paying for Mr Thompson; His view that the NSW Attorney General is not entitled to so act and to interfere with "the judicial function in the ACT"; That the Crown Solicitor's representation of the Commission involves an interference by the Executive with the judicial independence of the ACT Supreme Court, contrary to the Declaration of Principles on Judicial Independence issued by the Chief Justices of the Australian States and Territories in April 1997; That the Attorney General not being a party to the proceedings has no standing: Annetts v McCann (1990) 170 CLR 596 at 598; [1900] HCA 57; The Crown has a duty to the State of NSW not to the individual and cannot interfere with the administration of justice outside the State; and The criminal contempt in issue, given the interference by a solicitor in the administration of justice: Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 at [10]. 1. These submissions could not be accepted. 2. 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. 3. 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. 4. 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: "28 Attorney General's functions to prevail (1) The Director shall not, without the consent of the Attorney General, exercise a function in a manner that is 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. (2) If the Attorney General has, before the commencement of this section, determined that no bill of indictment be found in respect of an offence, or has directed that no further proceedings be taken against a person in respect of an offence, the Director shall not exercise a function in a manner that is inconsistent with the determination or direction, unless the Director is satisfied that: (a) significant fresh evidence has been produced that was not previously available for consideration, or (b) the determination or direction was obtained by fraud, and that in all the circumstances it is in the interests of justice that the matter be re-opened." 1. 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. 2. 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. 3. 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: "44 Crown Solicitor (1) The Crown Solicitor may, in his or her official capacity, act as solicitor for: (a) the State of New South Wales, or (b) a person suing or being sued on behalf of the State of New South Wales, or (c) a Minister of the Crown in his or her official capacity as such a Minister, or (d) a body established by an Act or other law of New South Wales, or (e) an officer or employee of the Public Service or any other service of the State of New South Wales or of a body established by an Act or other law of New South Wales, or (f) a person holding office under an Act or other law of New South Wales or because of the person's appointment to that office by the Governor or a Minister of the Crown, or (g) any other person or body, or any other class of persons or bodies, approved by the Attorney General. (2) The Crown Solicitor may act under subsection (1): (a) with or without charge, or (b) for a party in a matter that is not the subject of litigation, even if also acting under that subsection for another party in the matter. (3) The Crown Solicitor may, in his or her official capacity, act as agent for: (a) another State or a Territory, or (b) at the request of another State or a Territory—an instrumentality of, or a person in the service of, that State or Territory. (4) If, under subsection (1) (g), the Crown Solicitor is given approval to act as solicitor for a Minister of the Crown (otherwise than in his or her official capacity as such a Minister), the following must be included in the annual report under the Annual Reports (Departments) Act 1985 of the Crown Solicitor's activities: (a) the name of the Minister, (b) the matter in which the Crown Solicitor acted (but without disclosure of any confidential client information), (c) the costs incurred by the Crown Solicitor in acting for the Minister and the amount charged to the Minister for so acting. (5) In this section, a reference to a State or a Territory includes a reference to the Crown in right of the State or Territory and to the Government of the State or Territory. 1. 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.