[1990] HCA 57
Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256
Source
Original judgment source is linked above.
Catchwords
[1990] HCA 57
Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256
Judgment (3 paragraphs)
[1]
Judgment
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:
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."
The Summons sets out the grounds for the order sought as follows:
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. 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. 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. 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. Taxpayers' money cannot be used to prosecute a matter in the wrong court, in the wrong state or territory.
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.
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:
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."
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.
Rule 14.28 provides for the circumstances in which a court may strike out pleadings. It provides relevantly as follows:
14.28 Circumstances in which court may strike out pleadings
(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of process of the court.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).
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.
Rule 13.4 provides as follows:
13.4 Frivolous and vexatious proceedings
(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,
the court may order that the proceedings be dismissed generally or in relation to that claim.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).
In the alternative, it was submitted that the Summons had no merits because:
1. To the extent that the plaintiff interpreted that the Crown Solicitors Office was a prosecutor, that was not correct.
2. The Health Care Complaints Act provisions regarding the production of documents on subpoena is not an extant issue.
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.
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:
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.
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.
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.
The Summons is an abuse of process and the order sought in the Summons is refused.
[2]
Orders
Accordingly, I order as follows:
1. The Summons filed by the plaintiff dated 12 July 2017 is dismissed.
2. The plaintiff is to pay the defendant's costs associated with the Summons.
[3]
Amendments
09 August 2017 - Corrected counsel's initials.
09 August 2017 - Representation amended.
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Decision last updated: 09 August 2017