Supreme Court New South Wales Medium Neutral Citation: Quach v Health Care Complaints Commission [2018] NSWSC 402 Hearing dates: 19 March 2018 Date of orders: 19 March 2018 Decision date: 03 April 2018 Jurisdiction: Common Law Before: Lonergan J Decision: (1) I dismiss the Summons filed on 8 January 2018. (2) Pursuant to s 98(1) of the Civil Procedure Act, I order that the Plaintiff pays the costs of the Defendant. (3) I list the matter for directions on 20 April 2018 at 9:00 am in relation to any further costs order to be sought by the Defendant. Catchwords: ADMINISTRATIVE LAW – prohibition order sought against the New South Wales Health Care Complaints Commission instructing the New South Wales Crown Solicitor – abuse of process Legislation Cited: Civil Procedure Act 2005 (NSW) s 98 Commonwealth Constitution ss 106, 122 Domestic Violence and Protection Orders Act 2008 (ACT) Health Care Complaints Act 1993 (NSW) ss 3, 75, 90B, 99A Legal Profession Uniform Law Application Act 2014 (NSW) s 44 Service and Execution of Process Act 1992 (Cth) Uniform Civil Procedure Rules 2005 (NSW) r 42.1 Cases Cited: Australian Vaccination Network Inc v Health Care Complaints Commission [2012] NSWSC 110 Gedeon v Commissioner for the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 Quach v New South Wales Crown Solicitor [2017] NSWSC 904 Quach v New South Wales Crown Solicitor [2017] NSWSC 991 Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267 Quach v RU (No 1) [2017] ACTSC 233 Quach v RU (No 2) [2017] ACTSC 234 Re JJT; Ex Parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44 Category: Principal judgment Parties: Michael Van Thanh Quach (Plaintiff) Health Care Complaints Commission (Defendant) Representation: Counsel: B Thomson (Defendant) Solicitors: M Quach, unrepresented (Plaintiff) Crown Solicitor's Office (Defendant) File Number(s): 2018/7882 Judgment 1. Mr Quach is a former medical practitioner. In April 2015, his practicing certificate was cancelled after findings of impairment and lack of competence. Those proceedings led to no less than 10 proceedings being commenced and pursued by Mr Quach in the NSWCA. The last of these, Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267, concluded with orders (amongst others) declaring Mr Quach a vexatious litigant in respect of the subject matter of those (and earlier) CA proceedings. 2. Against this background on 8 January 2018, Mr Quach filed a summons seeking the following order: 1 Prohibition Order against the NSW HEALTH CARE COMPLAINTS COMMISSION from authorising and instruction the NSW Crown Solicitor under Section 75 (3) of the Health Care Complaints Commission Act 1993 (NSW), "(3) Subject to section 90B, the functions of the Commission are exercisable by the Commissioner. Any act, matter or thing done in the name of, or on behalf of, the Commission by the Commissioner, or with the authority of the Commissioner, is taken to have been done by the Commission." to prosecute Section 99A (2) of the Health Care Complaints Commission Act 1993 (NSW)." 1. Although worded differently this is the same or very similar to prohibition sought by Mr Quach from this Court twice in 2017. 2. In a summons filed on 27 June 2017 the order sought was dismissed with costs on 6 July 2017 by Schmidt J (Quach v New South Wales Crown Solicitor [2017] NSWSC 904) was worded as follows: "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. Six days later, on 12 July 2017 Mr Quach filed another summons. The order sought was worded as follows: "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 to prosecute the offence under s 99A(2) of the Health Care Complaints Commission Act 1993 (NSW) in the ACT Supreme Court in Quach v Butt. "99A Offence: Improper disclosure of information (2) A person may not be compelled in any legal proceedings to give evidence about, or produce documents containing, any information obtained in exercise of a function under this Act."" 1. That summons was dismissed as an abuse of process: Quach v New South Wales Crown Solicitor [2017] NSWSC 991. 2. The current summons too is an abuse of process and I have dismissed it with costs for the reasons which follow. Statutory framework 1. The Health Care Complaints Act 1993 (NSW) provides the machinery by which the HCCC can receive and deal with complaints regarding health care. 2. The section salient to this application are as follows: 3 Object and principle of administration of Act (1) The primary object of this Act is to establish the Health Care Complaints Commission as an independent body for the purposes of: (a) receiving and assessing complaints under this Act relating to health services and health service providers in New South Wales, and (b) investigating and assessing whether any such complaint is serious and if so, whether it should be prosecuted, and (c) prosecuting serious complaints, and (d) resolving or overseeing the resolution of complaints. … 75 The Commission (1) There is constituted by this section a body corporate with the corporate name of the Health Care Complaints Commission. (2) The Commission is a statutory body representing the Crown. (3) Subject to section 90B, the functions of the Commission are exercisable by the Commissioner. Any act, matter or thing done in the name of, or on behalf of, the Commission by the Commissioner, or with the authority of the Commissioner, is taken to have been done by the Commission. (4) A reference in this Act to anything done or omitted by, to or in relation to the Commission includes a reference to a thing done or omitted by, to or in relation to the Commissioner or another officer of the Commission having authority in the circumstances. … 90B Functions of Director of Proceedings (1) The following functions of the Commission are to be exercised only by the Director of Proceedings in relation to any complaint referred to the Director by the Commission: (a) to determine whether the complaint should be prosecuted before a disciplinary body and, if so, whether it should be prosecuted by the Commission or referred to another person or body for prosecution, (a1) if the Director determines that the complaint should be prosecuted before a disciplinary body by the Commission, to prosecute the complaint before the disciplinary body, (b) to intervene in any proceedings that may be taken before a disciplinary body in relation to the complaint. (2) In addition, the Director of Proceedings has any other functions conferred or imposed on the Director by or under this or any other Act. (2A) Without limiting subsection (2), the Director of Proceedings may exercise any other functions conferred or imposed on the Commission by another Act and delegated to the Director under section 84. (3) The Director of Proceedings: (a) may at any time consult with a professional council in relation to the exercise of any of the Director's functions, and (b) must consult with the appropriate professional council (if any) before determining whether or not a complaint should be prosecuted before a disciplinary body. (3A) If the Director determines that a complaint should not be prosecuted before a disciplinary body, the Director may refer the complaint back to the Commission for action to be taken under section 39 (1) (c)–(g). (3B) The Director may refer a complaint back to the Commission for further investigation under Division 5 of Part 2 if the Director: (a) is unable to determine whether the complaint should be prosecuted before a disciplinary body, or (b) is of the opinion that further evidence is required to enable the Director to prosecute the complaint before the disciplinary body. (3C) If a complaint has been referred to the Commission for further investigation under subsection (3B), sections 39 (2) and 40 apply in relation to the complaint only if the Commission, at the end of the further investigation of the complaint, proposes to take any of the following action: (a) change the person whose conduct appears to be the subject of the complaint or include another person as a person whose conduct appears to be the subject of the complaint, (b) add to, substitute, amend or delete any of the specific allegations comprising the complaint (including add an allegation arising out of an investigation of the complaint that may not be the particular object of the complaint). (4) The exercise by the Director of Proceedings of any function referred to in subsection (1) is taken to be the exercise of that function by the Commission. (5) While holding the office of Director of Proceedings, a person is not to exercise any function of the Commission other than a function referred to in subsection (1) or (2A). … 99A Offence: improper disclosure of information (1) If a person discloses information obtained in exercising a function under this Act and the disclosure is not made: (a) with the consent of the person to whom the information relates, or (b) in connection with the execution and administration of this Act, or (c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or (d) with other lawful excuse, the person is guilty of an offence. Maximum penalty: 10 penalty units or imprisonment for 6 months, or both. (2) A person may not be compelled in any legal proceedings to give evidence about, or produce documents containing, any information obtained in exercising a function under this Act. 1. I cite the legislative framework for background. None of this machinery and none of these legislative provisions, when properly considered in context, are provisions which inform any consideration as to whether the HCCC should be allowed to authorise or instruct the New South Wales Crown Solicitor to act on its behalf. The current application 1. The ground stated for the order set out in the summons is worded as follows: "There is no "jurisdiction fact" [sic] that can be established to authorised [sic] and instruct the NSW Crown Solicitor to prosecute Section 99A (2) of the Health Care Complaints Commission Act 1992 (NSW), pursuant to: I. Gedeon v NSW Crime Commission [2008] HCA 43 at [43]. "the expression "jurisdictional fact" was used somewhat loosely in the course of submissions. Generally the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker." II. Australian Vaccination Network Inc v Health Care Complaints Commission [2012] NSWSC 110 at [51]." 1. In oral submissions Mr Quach, who appeared for himself, made the following points. First, he said that s 3(1) of the Health Care Complaints Act limited the jurisdiction of the Health Care Complaints Commission ("HCCC") to proceedings in New South Wales, not proceedings in the ACT. By its terms, s 3 of the Act precludes the HCCC from being instructed in proceedings in the ACT. It appears that this submission was directed to a focus Mr Quach has regarding proceedings he himself commenced in the Supreme Court in the ACT against a solicitor employed by the HCCC. These proceedings were all determined unfavourably to him, most recently in Quach v RU (No 2) [2017] ACTSC 234. 2. In support of his argument, Mr Quach said s 106 and s 122 of the Commonwealth Constitution made it "very clear" that the Australian Capital Territory and New South Wales were different jurisdictions. He said that the HCCC is bound by its statue and can only act in the State of New South Wales. 3. In further support of this argument Mr Quach said that the Service and Execution of Process Act 1992 (Cth) did not include any provisions for subpoenas for production of documents. Again, this appears to focus on the ACT proceedings which deal with a subpoena Mr Quach issued to the HCCC which was the subject of a determination by Justice Penfold on 21 August 2017: Quach v RU (No 1) [2017] ACTSC 233. 4. Mr Quach relied upon the decision of Adamson J in Australian Vaccination Network Inc v Health Care Complaints Commission [2012] NSWSC 110 at [51] as illustrating the approach that was submitted I should take in dealing with his application. The argument rested upon [41] of her Honour's judgment which dealt with the statutory jurisdiction of the HCCC to carry out certain acts and the problem that arose in that case, where there had not been a formal complaint made to activate jurisdiction. 5. This argument is entirely misconceived. The conclusions reached in that judgment are irrelevant to Mr Quach's summons. The misapplication of this decision formed the basis for Mr Quach's request for a declaration that the HCCC could not "act" in the ACT. Evidence and submissions of the HCCC 1. The HCCC relied upon an affidavit of Mr Thomson who also appeared on behalf of the HCCC. This affidavit provided necessary contextual background. Mr Quach had filed an application for a Personal Protection Order in the ACT Magistrates Court against a solicitor employed by the New South Wales HCCC – Ms Butt. That application was made pursuant to the provisions of the Domestic Violence and Protection Orders Act 2008 (ACT) prompted, it seems, by Ms Butt writing to Mr Quach in relation to costs due to it in respect of prior proceedings between him and the HCCC. 2. In March 2016 the NSW Crown Solicitor received instructions from the HCCC to act for it in relation to that application. Summary dismissal was sought and granted on 13 April 2016. On 5 May 2016, Mr Quach filed a Notice of Appeal in the ACT Supreme Court and in the context of those proceedings Mr Quach served a subpoena upon the HCCC. 3. A senior legal officer at the HCCC, Michael Darmody wrote and advised that s 99A(2) of the Health Care Complaints Act provided the basis upon which the Commission would not produce the documents sought. 4. Mr Quach filed an application in the ACT Supreme Court seeking orders that the HCCC produce the documents and claiming that the HCCC was in contempt for a failing to produce. That application was heard in April 2017 together with Mr Quach's application for judicial review of the summary dismissal granted in April 2016: Quach v RU (No 1) [2017] ACTSC 233. 5. Mr Thomson raised a number of bases upon which Mr Quach's summons should be dismissed. First and foremost, there is no evidence that there is any prosecution by the HCCC for an offence under s 99A of the Health Care Complaints Act either on foot or in contemplation against Mr Quach. 6. Second, it is difficult to conceive of how any such offence would arise in relation to Mr Quach. 7. Third, the letter referred to by Mr Quach (and attached to his summons) from Mr Darmody of the HCCC related to a subpoena issued by Mr Quach in other proceedings which was found to be ineffective in the judgment in August last year already referred to. 8. Fourth, s 44(1)(d) of the Legal Profession Uniform Law Application Act 2014 (NSW) provides that the Crown Solicitor may act for a body established by an act or other law of New South Wales. This would include the HCCC. (This issue was dealt with in both judgments of Schmidt J and Lonergan J in July 2017). 9. Fifth, the order sought by Mr Quach has already been refused in two substantially similar applications. These proceedings are therefore an abuse of the process of the court. Discretion should not be exercised to grant prohibition as the relief sought is futile and serves no useful purpose. Decision 1. I accept each of the submissions raised on behalf of the HCCC. 2. I have already referred to the previous proceedings commenced by summons by Mr Quach. The current proceedings are in effect a repetition of those and are therefore an abuse of process. The arguments raised regarding the Constitution are irrelevant and misplaced. The reliance upon Gedeon v Commissioner for the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 and Australian Vaccination Network Inc v Health Care Complaints Commission [2012] NSWSC 110 are misplaced. 3. None of the arguments raised by Mr Quach have any merit or persuasive effect. 4. The relief sought by Mr Quach is misconceived and the summons is dismissed. Costs 1. Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) provides as follows: 42.1 General rule that costs follow the event Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs. 1. Costs should follow the event. This is particularly so where the Summons filed has been found to be an abuse of process. 2. Mr Quach argued that I had no power to make a costs order relying upon [41.1] of Re JJT; Ex Parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44: 41. Before considering each of these suggested sources of the power, a few general propositions may be accepted: 1. There was no power to order costs at common law. The source of the power must therefore be found in legislation. Accordingly, the primary task before the Court in this part of the case, is to examine the provisions of the Act relied upon and to consider whether those provisions, or any of them, sustain the order. 1. As explained to Mr Quach that judgment related to circumstances that arose in a case where there was arguably no statutory basis upon which to make a costs order. 2. Section 98 of the Civil Procedure Act 2005 (NSW) provides this court with the power to make an order to determine by whom, to whom and to what extent the costs are to be paid. 3. Mr Quach seemed to be labouring under the misapprehension that the power for a costs order must come from the Health Care Complaints Act. This is not correct. There is power to make a costs order pursuant to the Civil Procedure Act and I order that Mr Quach pay the defendant's costs of these proceedings. 4. Mr Thomson foreshadowed that he may be instructed to seek a gross sum costs order. 5. I have listed the matter for Directions on 20 April 2018 at 9:00 am to make directions in relation to any such application. Orders 1. I dismiss the Summons filed on 8 January 2018. 2. Pursuant to s 98(1) of the Civil Procedure Act, I order that the Plaintiff pays the costs of the Defendant. 3. I list the matter for directions on 20 April 2018 at 9:00 am for directions in relation to any further costs order to be sought by the Defendant. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 April 2018