Quach v NSW Health Care Complaints Commission

Judgment (5 paragraphs)

[1]

JUDGMENT

HIS HONOUR: By Summons, filed 11 July 2018, the plaintiff, who is self represented, has brought proceedings in the Administrative Law list of the Common Law Division against the NSW Health Care Complaints Commission. The relief claimed is: "1 Prohibition Order against the NSW HEALTH CARE COMPLAINTS COMMISSION from authorising and instructing 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) in the Australian Capital Territory."
The Summons goes on to set out the following grounds in support of the order sought. "2 Grounds for Summons: I. Pursuant to the Separation of Powers in the Commonwealth of Australia Constitution Act (The Constitution) (Cth), there is no application for State Supreme Court to make any interpretation on the Notice of Constitutional Matter under S78B(1) of the Judiciary Act 1903 (Cth), intended for consideration by the Executive of the Commonwealth (and State Attorneys General). II. Pursuant to Section 76(i) Additional Original Jurisdiction of the Commonwealth of Australia Constitution Act (The Constitution) (Cth), "76. Additional original jurisdiction The Parliament may make laws conferring original jurisdiction on the High Court in any matter: (i) arising under this Constitution, or involving its interpretation; only the High Court has the power to make interpretations on the Separation of Powers under the Commonwealth of Australia Constitution Act (The Constitution) (Cth). III. The [New South Wales] State Supreme Court does not have any power to make any interpretation on the Commonwealth of Australia Constitution Act (The Constitution) (Cth), in particular, the Separation of Powers. IV. Pursuant to Section 73 of the Commonwealth of Australia Constitution Act (The Constitution) (Cth), the matter is Separation of Powers between the Parliament, the Executive and Judicature is a "matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council," and cannot be prevented from being properly heard and determined. "But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council." V. Pursuant to Section 109 of the Commonwealth of Australia Constitution Act (The Constitution) (Cth), "109. Inconsistency of laws When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid." VI. Health Care Complaints Commission Act 1993 (NSW) is a criminal jurisdiction, and the Civil Procedure Act 2005 (NSW) does not apply. i. Pursuant to Section 3 Object and principle of administration of Act of the Health Care Complaints Commission Act 1993 (NSW), "(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." The Health Care Complaints Commission can only act on matters in the state of New South Wales. ii. Prosecutions of medical practitioners take place under the Health Practitioner Regulation National Law (NSW). Pursuant to Division 3 Legal Proceedings, Section 242 and 243 of the Health Practitioner Regulation National Law (NSW), "Division 3 Legal proceedings 242 Proceedings for offences A proceeding for an offence against this Law is to be by way of a summary proceeding before a court of summary jurisdiction 243 Conduct may constitute offence and be subject of disciplinary proceedings (1) If a person's behaviour constitutes an offence against this Law or another Act and constitutes professional misconduct, unsatisfactory professional performance or unprofessional conduct under this Law - (a) the fact that proceedings for an offence have been taken in relation to the behaviour does not prevent proceedings being taken before an adjudication body under this Law for the same behaviour; and (b) the fact that proceedings have been taken before an adjudication body under this Law in relation to the conduct does not prevent proceedings for an offence being taken for the same behaviour. (2) If a person's behaviour may be dealt with by a health complaints entity under the law of a participating jurisdiction and constitutes professional misconduct, unsatisfactory professional performance or unprofessional conduct under this Law - (a) the fact that the behaviour has been dealt with by the health complaints entity does not prevent proceedings being taken before an adjudication body under this Law for the same behaviour; and (b) the fact that proceedings have been taken before an adjudication body under this Law in relation to the behaviour does not prevent action being taken by the health complaints entity under the law of the participating jurisdiction for the same behaviour" iii. Pursuant to Section 28 of the Criminal Procedure Act 1986 (NSW), "Part 3 Criminal proceedings generally 28 Application of Part and definition (1) This Part applies, to the extent that it is capable of being applied, to all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with." Therefore, all "proceedings" by the Health Care Complaints Commission against medical practitioners fall under the Health Practitioner Regulation Act National Law (NSW) legal proceedings, which Section 28 of the Criminal Procedure Act 1986 (NSW) applies. VII. In relation to the prosecutions under S99A(2) of the Health Care Complaints Commission Act 1993 (NSW) in the Australian Capital Territory Supreme Court (Annexure 'A' Affidavit 10 JULY 2018), there is no valid statutory authority for the Health Complaints Commission to act in the Australia Capital Territory, pursuant to Section 3(1) of the Health Care Complaint Commission Act 1993 (NSW). VIII. The matter of whether the Australian Capital Territory lies under the constitutional jurisdiction of New South Wales is a "matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council." IX. Pursuant to Section 73 of the Australia Constitution, "But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council," The matter of whether the Seat of Government, Australian Capital Territory, remain under the jurisdiction of the State of New South Wales under Section 106 of the Commonwealth of Australia Constitution Act (The Constitution) (Cth) cannot be prevented from being properly heard and determined. X. Pursuant to Section 125 of the Commonwealth of Australia Constitution Act (The Constitution) (Cth), "125. Seat of Government The seat of Government of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth, and shall be in the State of New South Wales, and be distant not less than one hundred miles from Sydney." The Australian Capital Territory is "vested in and belongs to the Commonwealth," and not under the jurisdiction of the New South Wales Health Care Complaints Commission, pursuant to Section 3(1) of the Health Care Complaints Commission Act 1993 (NSW). XI. Pursuant to the Memorandum of Understanding between the Health Care Complaints Commission and the Director of Public Prosecutions (Annexure 'B' Affidavit 10 JULY 2018), "refer the matter to the Director of Public Prosecutions if possible criminal conduct is involved." Prosecution under S99A(2) of the Health Care Complaints Commission Act 1993 (NSW) is a criminal matter. XII. There is no valid statutory authority for the NSW Health Care Complaints Commission to instruct the NSW Crown Solicitor to prosecute criminal matters under S99A(2) of the Health Care Complaints Commission Act 1993 (NSW) in the Australian Capital Territory Supreme Court, outside the state of New South Wales."

Consideration and determination

The plaintiff's Summons should be dismissed pursuant to either r 13.4 or r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).
Those rules relevantly provide: 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). … 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 the process of the court. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).
By reference to those rules, the plaintiff's Summons is clearly an abuse of process in that this is the fourth occasion that the plaintiff has sought substantially the same or similar order which the Court has refused to make on three previous occasions. The reason for why that is so was succinctly set out by Lonergan J in Quach v Health Care Complaints Commission [2018] NSWSC 402. I agree with her Honour's findings to that effect and I gratefully adopt her reasons: "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)." 3 Although worded differently this is the same or very similar to prohibition sought by Mr Quach from this Court twice in 2017. 4 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."" 5 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." 6 That summons was dismissed as an abuse of process: Quach v New South Wales Crown Solicitor [2017] NSWSC 991. 7 The current summons too is an abuse of process and I have dismissed it with costs for the reasons which follow. … 27 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…."
Mr Quach has followed the same approach as was rejected by Lonergan J in these proceedings. He has sought, in effect, the same relief as in the earlier proceedings in this Court but has purported to advance slightly different reasons for why that relief should be granted. That has never been a basis for bringing repetitive claims in circumstances where the first claim has been rejected, let alone the present situation where three previous claims for substantially the same relief have been rejected.
The position was succinctly summarised by Gleeson JA (with whom Simpson JA and Sackville AJA agreed) in the most recent Court of Appeal decision (Quach v NSW Health Care Complaints Commission; NSW Civil and Administrative Tribunal [2017] NSWCA 267) where his Honour said: "104 As observed by this Court in Quach (No 6) and Quach v NCAT (No 2), the problem which confronts this Court (and the respondents and other entities against whom Mr Quach has previously sought orders) is that Mr Quach will not or cannot accept the decisions of this Court, including that his claims for judicial review of NCAT's Stage One and Stage Two decisions have been determined by this Court and that further attempts to re-litigate those claims are both futile and an abuse of process, and that he has also exhausted his right of review of the Teoh order made by Meagher JA in Quach (No 2)."
That is sufficient to deal with the matter.
Apart from that consideration, the grounds apparently relied upon by the plaintiff are discursive, irrelevant, confusing and wrong.
The "Grounds for Summons" are divided into twelve points. Points I-V and VIII-XI purport to raise constitutional issues and reference is made to s 78B of the Judiciary Act 1903 (Cth) and ss 73,76, 109 and 125 of the Commonwealth of Australia Constitution Act (1900) (Cth). As is clear from the affidavit of Mr Thomson and the background to these proceedings, those constitutional issues simply do not arise. The proceedings in the ACT were initiated by the plaintiff. No issue of separation of powers arises. Both Ms Butt and the HCCC were entitled to have legal representation in the ACT proceedings. Just because it was the Crown Solicitor who provided that representation did not make either the Crown Solicitor nor the Attorney-General of NSW a party to the proceedings. Nor was there any interference with the administration of justice in the ACT.
The Crown Solicitor's appearance for the HCCC and Ms Butt in the ACT proceedings was as a solicitor, not as a party. Section 44 of the Legal Profession Uniform Law Application Act 2014 (NSW) provides for such representation.
Implicit in Mr Quach's oral submissions was a misapprehension that the mere raising of a s 78B point would compel the court in which the matter was raised to refer the matter to the High Court and not deal with the matter itself. That, of course, is incorrect. In that regard, the observations of French J in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd and Others [1999] FCA 1151 at [14] are apposite: "14 Section 78B does not impose on the court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be. If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation - Nikolic v MGIC Ltd [1999] FCA 849: cf Australian Securities and Investment Commission v White (unreported, Federal Court, Drummond J, No QG 40 of 1998, 16 July 1998)."
Accordingly, it is clear from their form and content that the grounds purporting to raise constitutional issues are misconceived and do not need to be referred to the High Court.
There is no substance in Ground VI. Mr Quach was prepared to accept that the Crown Solicitor could appear for the HCCC in civil proceedings but not in criminal proceedings. He characterised the proceedings brought against him by the HCCC as criminal proceedings and specifically referred to s 99A(1) of the HCC Act. The difficulty for Mr Quach is that the NCAT proceedings were not criminal but civil disciplinary proceedings. His reference to and reliance on a "prosecution" pursuant to s 99A(1) of the HCC Act is also misconceived. There was never a prosecution brought against him under that section. All that occurred was that when he issued a subpoena to the ACCC, a senior officer of the ACCC responded by refusing to produce the documents sought and in doing so relied upon the provisions of s 99A(2) of that Act.
In any event, there is no limitation under s 44 of the Legal Profession Uniform Law Application Act which would prevent the Crown Solicitor acting for one of the specified organisations in criminal proceedings as well as civil proceedings. Accordingly, Ground VI is without merit.
Grounds VII and XII repeat the plaintiff's misconception relating to ss 99A(1) and 99A(2) of the HCC Act. Those grounds are also without merit.
In the course of oral submissions, it was put to Mr Quach that he was bound by the earlier decisions of this Court and of the ACT Supreme Court. His response to that was to submit that he could ignore orders of the Supreme Court if, in his opinion, the decision of the Court was inconsistent with the legislation. The plaintiff submitted that in those circumstances the order of the Court was a nullity and could be ignored. I understand the reference to "legislation" to be a reference to the HCC Act.
The proposition relied upon by the plaintiff is wrong and was decisively rejected by the High Court in State of NSW v Kable [2013] HCA 26; 252 CLR 118.
Once that proposition is rejected, as it must be, the misconception giving rise to these proceedings becomes obvious. There are no longer any extant proceedings in the ACT involving the plaintiff, nor are there such proceedings in NSW, except for this application. Accordingly, the whole question of the legal representation for the HCCC, insofar as that representation involves proceedings brought either for or against the plaintiff, is moot. That is yet another reason why this Summons should be dismissed.
The orders which I propose are: 1. Summons dismissed. 2. The plaintiff is to pay the defendant's costs.

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