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[2017] ACTSC 234
General information, not legal advice.
Supreme Court of the ACT
2017-08-21
Penfold J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - In General and Right of Appeal - appeal from Magistrate's decision striking out application for personal protection order as disclosing no reasonable cause of action - appellant's registration as medical practitioner cancelled in NSW - costs orders made in favour of NSW Health Care Complaints Commission - communications from employee of NSW Health Care Complaints Commission seeking to enforce costs orders - Magistrate found communications did not constitute personal violence - no error in Magistrate's decision to strike out appellant's application.
Domestic Violence and Protection Orders Act 2008 (ACT), ss 14, 46, 46(1)(b)
Health Care Complaints Act 1993 (NSW), ss 90A, 98, 100
Personal Violence Act 2016 (ACT)
Domestic Violence and Protection Orders Regulation 2009 (ACT), reg 69, 69(1), 69(2), 69(3)
Brambles Holdings Ltd v Trade Practices Commission [1979] FCA 80; (1979) 28 ALR 191
House v The King [1936] HCA 40; (1936) 55 CLR 499;
Quach v RU (No 1) [2017] ACTSC 233
Quach v NSW Civil and Administrative Tribunal (No 2) [2017] NSWCA 182
Local Court Bench Book, NSW Judicial Commission, [83000]
Prosecution Guidelines 2007, NSW Office of the Director of Public Prosecutions, Guideline 23
Mr J Maher; Mr R Bayliss; Mr B Thomson (Respondent)
Kamy Saeedi Law as agent for NSW Crown Solicitor's Office; ACT Government Solicitor; NSW Crown Solicitor's Office (Respondent)
1. Michael Van Thanh Quach has appealed against the decision of Magistrate Morrison dismissing his application for a personal protection order against RU.
2. The application has its origin in complaints made against Mr Quach to the NSW Health Care Complaints Commission (HCCC). As a result of those complaints, the HCCC brought proceedings against Mr Quach in the NSW Civil and Administrative Tribunal (NCAT), and eventually his registration as a medical practitioner was cancelled. Mr Quach has challenged the processes and outcomes of the HCCC's actions in a large number of proceedings in the NSW courts (see Quach v NSW Civil and Administrative Tribunal (No 2) [2017] NSWCA 182, which cites five previous cases heard in the NSW Court of Appeal and two cases between Mr Quach and the HCCC heard in the Occupational Division of NCAT, as well as cases brought by Mr Quach against the NCAT Occupational Division itself).
3. Since those proceedings were completed and costs orders were made against Mr Quach by NCAT and the NSW Court of Appeal, RU, a Legal Officer with the HCCC, has attempted to enforce the costs orders, by sending two emails to Mr Quach on 18 December 2015 seeking payment under the costs orders in favour of the HCCC, and attaching invoices to a total value of just over $132,000. Mr Quach has taken exception to her communications with him in pursuit of the costs awarded in favour of her employer, and has raised a variety of more or less bizarre claims about RU's actions. One of the more bizarre claims is that RU is seeking to recover money from him on her own behalf and for her own personal enrichment. This claim is partly but not entirely based on the fact that some of the costs set out in the itemised bill of costs for which RU seeks payment on behalf of the HCCC identify RU as the lawyer providing the costed services.
4. It is hard to know whether Mr Quach genuinely believes in the claims he has made and the arguments he has raised in this matter, or whether he is simply engaging in tactics intended to delay the HCCC's recovery of its costs.
5. A Personal Protection Order (PPO) restrains "personal violence" by the person subject to the order. Section 46 of the Domestic Violence and Protection Orders Act 2008 (ACT) (replaced from 1 May this year by the Personal Violence Act 2016 (ACT)) was at the relevant time as follows:
(1) The Magistrates Court may, on application, make a final order (other than a workplace order) if satisfied that -
(a) the respondent has engaged in domestic violence; or
(i) has engaged in personal violence towards the aggrieved person; and
(ii) may engage in personal violence towards the aggrieved person during the time the order is proposed to operate if the order is not made.
(2) If an interim order has been made on the application and the respondent has objected to the interim order, in making the final order the Magistrates Court must consider the respondent's objection.
Note This section does not apply to consent orders (see s 43 (2) (b)).
6. "Personal violence" is defined in s 14:
(1) For this Act (other than for division 6.2), a person's conduct is personal violence if the person -
(a) causes personal injury to someone (the aggrieved person) or damage to the aggrieved person's property; or
(b) threatens to cause personal injury to the aggrieved person or damage to the aggrieved person's property; or
(c) is harassing or offensive to the aggrieved person.
Note Personal violence, for a workplace - see s 50.
(2) However, a person's conduct is not personal violence if it is domestic violence.
7. On an application made by RU's lawyer, Mr Quach's application was dismissed under reg 69 of the Domestic Violence and Protection Orders Regulation 2009 (ACT), which is as follows:
(1) This section applies if, in a proceeding, it appears to the Magistrates Court, in relation to the proceeding generally or in relation to a particular application or part of the proceeding, that -
(i) frivolous or vexatious; or
(ii) an abuse of the process of the court.
(2) The Magistrates Court may, on the application of the respondent or on its own initiative, order that the proceeding be stayed or dismissed either generally or in relation to the claim for relief.
(3) The Magistrates Court may receive evidence on the hearing of an application for an order under subsection (2).
8. It is necessary first to deal with a minor point raised by Mr Quach, who argued that regs 69(1) and 69(2) confer separate and independent powers to deal with proceedings in the Magistrates Court, and therefore that Magistrate Morrison erred in purporting to dismiss his application under reg 69(2) on grounds set out in reg 69(1). This argument involves a simple but complete mis-reading of reg 69, in which the power conferred, and the circumstances for its exercise, are separated into two provisions (respectively regs 69(2) and 69(1)) for ease of comprehension. The reader is first told (reg 69(1)) about the circumstances in which the section applies (ie where certain things appear to the Court). When those circumstances apply, the rest of the section becomes operative, and the Court has the powers set out in reg 69(2) (and in fact reg 69(3)).
9. The application for the PPO claimed both harassment and threats of violence by RU, although I have not heard any explicit suggestion of threats of violence. It seems that Mr Quach really based his application on an allegation that RU's conduct was harassing or offensive to him. In the application form as completed, the section dealing with the grounds for the application is as follows:
(a) engaged in personal harassment toward me, Dr Michael Van Thanh Quach..........(insert name of person)*
(b) threatened personal violence offence1 [1 A person's conduct constitutes personal violence if the conduct caused personal injury to the aggrieved person or damage to the aggrieved person's property or is harassing or offensive to the aggrieved person] toward me/toward..........( insert name of person)*
* (delete as applicable)
Please provide details of conduct constituting (a) or (b) including date/s on which the conduct has occurred. If there is insufficient space, please attach an extra sheet setting out the details.
The NSW Health Care Complaints Commission has breached the following:
10. In dismissing the application, Magistrate Morrison said:
The evidence before me, for the purposes of dealing with the application, comprises the affidavit of [RU] to which I have referred earlier and also the affidavit of Mr Quach which was sworn on 11 April 2016 and filed. In addition, without objection, l received into evidence at the hearing an affidavit sworn by Mr Quach on 29 March 2016 and which, as I understand it, either has been or is intended to be filed in support of his application to transfer the proceedings to the Supreme Court. The document I marked as exhibit A.
The matters in evidence raised by Mr Quach, which he says provide the evidentiary basis for the making of the order sought, were addressed by him in his submissions. [Breach 3] He refers firstly to what he says is a breach of an undertaking in relation to costs which was given either by [RU] or by her on behalf of the Commission. It does seem to me that, on its face, it was a limited undertaking, that is to say, limited in time and that the subsequent conduct by way of the communications about the recovery of costs postdates what was the time limit on the undertaking.
For his part. Mr Quach raises an issue which he says goes to the question of the interpretation of that particular undertaking. It seems to me that on its face the argument that he raises in relation to that lacks merit but even if there was some meritorious argument on that issue of the undertaking in relation to costs it cannot be said that the conduct of [RU], by way of the action taken by her in terms of the communications in relation to costs, meets the threshold necessary for the making of a personal protection order in any event.
The applicant, that is the applicant for the original order, Mr Quach, also raises other arguments in relation to costs. [Breach 1] He refers, in particular, to allegations of wrong doing on the part of [RU] and appears to base those allegations, as I understand his submission, solely upon the fact that attendances by her have been recorded at an itemised cost in the itemised bill of costs which has been presented to him.
Again, it seems to me that the argument lacks merit on its face but even if it had some merit it seems to me that the conduct alleged of [RU] again does not meet the threshold necessary for the making of the orders sought by him. Mr Quach also raised questions as to the authority of [RU] to act in her professional capacity, and the capacity in which she acts and indeed raises a similar issue in relation to her solicitor. He raises a similar issue about the authority for the making of complaint matters which, it seems to me, go to the points which have already been the subject of the decisions made by the court and others in relation to the earlier complaints.
Again, the arguments on their face [lack] merit but even if they were meritorious arguments, the conduct of [RU], on the basis upon which it has been put before me in the evidence, again does not meet the threshold test that would be necessary for the purposes of the making of an order under the legislation.
I reach the conclusion I have reached without reference to the point raised in [RU]'s affidavit, which I think is quite validly raised and that is that in any event she has statutory immunity from action, liability, claim or damage from anything done as an officer of the Commission. Whether the terms of that section would be [broad] enough to prevent the making of an order is a question I do not have to determine in any event because of the conclusion I have reached on the basis of the material before me.
I have already read onto the record the relevant provision, that is regulation 69 of the Domestic Violence and Protection Orders Regulation. The application is made pursuant to regulation 69 sub (1) sub (a) on the basis that no reasonable cause of action is disclosed. On the basis of the evidence which is before me I am satisfied that no reasonable cause of action is disclosed. I should add that there is also, I think, a very good argument that either or both of the tests in the regulation 69 sub (1) sub (b) are also satisfied.
(Breach references added)
11. Mr Quach's grounds of appeal were set out at some length, but appear to raise two separate complaints.
12. The first is in effect a complaint about the Magistrate's jurisdiction, specifically that Magistrate Morrison should not have dismissed the application on a summary basis because, before the matter came before his Honour, another Magistrate had ordered that here should be a "proper hearing".
13. The second complaint relates to allegations about RU and her employer, the HCCC, being:
(a) that RU:
- (i) had made a false affidavit to the Magistrates Court;
- (ii) had acted in bad faith;
- (iii) did not have immunity from action, liability, claim or damage in respect of anything done as an officer of the HCCC; and
- (iv) did not have the authority to "act" in the proceedings taken against Mr Quach by the HCCC; and
(b) that there were restrictions on the HCCC's powers, and a definition of "complaint", that precluded the HCCC acting on the "complaints" identified in proceedings against Mr Quach.
14. On 7 March 2016, on the first mention of the application, Special Magistrate Mulligan had declined to make either an interim or a full PPO in the absence of the respondent, but had received a faxed message from the NSW Crown Solicitor's Office seeking an adjournment. His Honour said:
In the circumstances I think your application is an unusual one and at this point I am not prepared to make any form of order, be it interim or final, but I will not deny you a proper hearing on the matter that you bring.
15. Special Magistrate Mulligan then adjourned the matter to 18 March 2016.
16. On 18 March the matter came before Magistrate Morrison. The parties indicated that the matter had been before the Deputy Registrar for conferencing that morning, without resolution. The respondent applied for the PPO application to be summarily dismissed without further notice. His Honour, noting that the power for summary dismissal must be "exercised judicially", listed the application for summary dismissal for 13 April 2016, and set dates for filing and serving affidavits.
17. On 13 April, Magistrate Morrison, acting under reg 69 of the Domestic Violence and Protection Orders Regulation, dismissed Mr Quach's application for a PPO.
18. The first ground of appeal relied on by Mr Quach raises a jurisdictional issue rather than an issue of discretion.
19. Mr Quach frames this appeal ground as that Magistrate Morrison had no power to "review" his Honour's decision that the matter should have a full hearing.
20. The transcript of the first mention before Special Magistrate Mulligan shows the discussion leading up to Special Magistrate Mulligan's mention of a full hearing:
HIS HONOUR: This is the basis that you're bringing your application, is that you have received these two emails which you find to be harassing and threatening. Is that correct?
DR QUACH: Yes.
HIS HONOUR: All right. So there's one where the substance of the document, it's an email dated 18 December 2015, and it's from [RU], a legal officer with the Health Care Complaints Commission. She says:
I refer to the above matter and my letter to you dated 9 June 2015 arising from the order of the New South Wales Court of Appeal that you pay the Commission's costs. The total amount claimed is $25,412.
That's one.
DR QUACH: That's one.
HIS HONOUR: I think you've given me a second copy of that. No, I beg your pardon.
DR QUACH: No.
HIS HONOUR: Then there's another email dated 18 December 2015 at 11.58,which contains another letter from [RU], in which she says:
I refer to the above matter and my letter to you of 9 June arising from the order of the New South Wales Civil and Administrative Tribunal that you pay the Commission's costs. The total costs are $106,880.
That's another. And then you've given me the printouts of those two documents. So those are the two emails that are in issue, are they?
DR QUACH: Yes.
HIS HONOUR: All right. They're not in any way abusive or threatening in the normal sense. Would you concede that?
DR QUACH: With all due respect, I was trying to get to the point where [RU] is intimidating me to interfere with the administration of justice. It has made me be preoccupied with that. I've had to go to the police and ask for personal protection orders. She has escalated her attack on me by trying to seek a prohibition order of sorts to limit my civil liberty to properly sue her. She did so on 22 February 2016.
HIS HONOUR: Yes, but that's not threatening in any way, is it?
DR QUACH: I feel that my rights have been undermined.
HIS HONOUR: But I think we've got to be quite clear about that. The issue here is that you have a dispute with a body in New South Wales as to costs and fees that you owe, or may not owe, depending on how matters resolve themselves in due course. It appears to me you're trying to use another forum, another jurisdiction to try and circumvent the orders that have been made against you in New South Wales.
DR QUACH: With all due respect, your Honour, I'm asking for a personal protection on the advice of ACT Policing. I'm seeking, as I have been instructed to do so.
HIS HONOUR: All right. Look, also just on the file I've seen there's a letter from the Crown Solicitor's Office to this court dated 4 March 2016. Have you seen a copy of that letter?
DR QUACH: I had the opportunity to briefly read it.
HIS HONOUR: All right. So it says this. It's addressed to the Deputy Registrar, Magistrate Court of the ACT, so here. It was purportedly sent by fax on 4 March 2016. It's addressed as urgent and it says "Dear Deputy Registrar", then it gives your name, "Dr Michael Van Thanh Quach v [RU], R016/177," which is the identification of this case:
Applicant pursuant to Domestic Violence and Protection Orders Act 2008. I refer to the above application, which is returnable before the Magistrates Court on 7 March 2016 at 10.45. I confirm that the New South Wales Crown Solicitor acts on behalf of the named respondent, Ms [RU], who is an employee of the New South Wales Health Care Complaints Commission.
The New South Wales Crown Solicitor was instructed at 4.58 on Friday, 4 March 2015. I understand that the application was not served on [RU] until recently, notwithstanding the application was listed on 26 February 2016.
Accordingly, the Crown Solicitor, on behalf of the respondent to the application, respectfully requests that the matter be adjourned for seven days to allow arrangements to be made to take full instructions and to organise for an appearance before the court on the next occasion to make appropriate submissions.
Due to the lateness of the instructions, it has not been possible to arrange for an agent to appear before the court. In the circumstances, it is also respectfully submitted that no interim order be made during the period of any adjournment.
And then it invites the registrar to contact a named person. In the circumstances, I think your application is an unusual one, and at this point I'm not prepared to make any form of order, be it interim or final, but I won't deny you a proper hearing on the matter that you bring. I propose that we would allow a period of 10 days so that the New South Wales Crown Solicitor's Office can be properly instructed, so that they can take instructions and argue the matter before this court.
21. On the second occasion on which the matter came before Magistrate Morrison (13 April 2016), his Honour began to consider the application for summary dismissal, and Mr Quach pointed out Special Magistrate Mulligan's "decision" that there should be a full hearing. Magistrate Morrison replied that at that earlier point, Special Magistrate Mulligan did not have before him an application for summary dismissal, and proceeded to deal with that application.
I note that an application for summary dismissal was duly filed, as was a supporting affidavit, the application being by way of notice of motion. In response Mr Quach has filed what is a very short affidavit sworn on 11 April and it simply annexes a page of a transcript of proceedings before his Honour, Special Magistrate Mulligan, when the matter came before his Honour, again in a Protection Unit List on 7 March 2016.
The observations made by his Honour at that time were to the effect that the application was an unusual one. Relevantly I think it is probably best that I quote the relevant provision in full. It is this:
In the circumstances I think your application is an unusual one and at this point I am not prepared to make any form or order, be it interim or final, but I will not deny you a proper hearing on the matter that you bring.
He then goes on to adjourn the matter. Of course as was evident to Mr Quach at the time, his Honour, Special Magistrate Mulligan, did not have before him an application for summary dismissal. Today Mr Quach has told me that he does not wish the application for summary dismissal to proceed: firstly, because he has made an application to transfer proceedings to the Supreme Court and secondly, because of what was said by his Honour, Special Magistrate Mulligan, on 7 March.
22. I am satisfied that Special Magistrate Mulligan had not made an order that Mr Quach's PPO application would go to a full hearing, and had certainly not made an order that could deprive Magistrate Morrison of the capacity to hear an application for summary dismissal of the PPO application. Indeed I am satisfied that Special Magistrate Mulligan did not make an order at all in the terms implied by Mr Quach's argument.
23. Rather, his Honour simply indicated that he was not then willing to make either of the orders sought by Mr Quach (interim or final order), but nor was he prepared to finalise the matter that day so as to deprive Mr Quach of an opportunity to argue his case. Instead, he adjourned the matter to another day to allow the NSW Crown Solicitor's Office to be properly instructed. His Honour's comments, and that further listing, could not foreclose applications that could subsequently be made in the proceeding with possible implications for the course of the proceeding thereafter.
Second complaint - erroneous exercise of discretionary power
25. The summary dismissal of an application on grounds of the kind set out in reg 69 is a discretionary decision (Brambles Holdings Ltd v Trade Practices Commission [1979] FCA 80; (1979) 28 ALR 191 at 195).
26. The matters identified as part of the second complaint are not obviously meaningful appeal grounds against a discretionary decision such as Magistrate Morrison's decision to strike out Mr Quach's application for a protection order (House v The King [1936] HCA 40; (1936) 55 CLR 499).
27. The only sense I can make of the second complaint is that Mr Quach is pointing to matters that might possibly be grounds for a claim that Magistrate Morrison erroneously exercised his discretion by falling into some kind of factual or legal error in assessing the substance of Mr Quach's PPO application (at [9] above).
28. Tho "grounds of appeal" that I have identified as forming Mr Quach's second complaint are specified as follows:
"I am a solicitor and barrister in the State of New South Wales ('NSW") and hold a current practising certificate issued by the Law Society of NSW "
On Friday 29th April 2016 at approximately 3:30 PM, I called the New South Wales Bar Association and spoke with receptionist Mel. Mel confirmed that there is no barrister registered in the name of [RU] in the state of New South Wales. In my respectful submission to the Supreme Court, in the absence of the any qualification as a barrister in New South Wales, [RU] has made a false affidavit to the Court.
"92 General standards of clinical practice Nothing in this Act gives the Commission power to determine or recommend general standards of clinical practice,''
would prohibit [RU] from prosecuting any allegations of 'practice of medicine is significantly below the standard reasonably expected of a practitioner of equivalent level of training and experience" in the jurisdictions of Health Care Complaints Commission Act 1993 (NSW) as well as the Health Practitioner Regulation National Law (NSW) or any other Acts. A reasonable person in the position of a solicitor and/or barrister would be aware of this prohibition.
29. These matters may be relevant to the "breaches" alleged by Mr Quach in his statement of the conduct said to justify the making of a PPO, but none of these claims as such appears to call into question Magistrate Morrison's conclusions that none of that alleged conduct would have met the threshold test for the making of a PPO against RU under the Domestic Violence and Protection Orders Act.
30. The alleged breaches by the HCCC are of three obligations that are by implication asserted to bind the HCCC.
31. His Honour dealt with the first and third of those alleged breaches as shown in the transcript quoted at [10] above, but it is not clear that his Honour dealt directly with the second alleged breach. However, his Honour generally responded to Mr Quach's oral submissions, which alluded to but did not at all times directly address the breaches Mr Quach had identified in his PPO application.
32. In dealing with Mr Quach's appeal, however, I consider it appropriate to examine the grounds on which the PPO was sought in order to determine whether it was correct to conclude that the application disclosed no reasonable cause of action, in other words, that there were no grounds on which a PPO could have been made.
33. With one exception, I do not propose to address Mr Quach's "grounds of appeal" to the extent that they seem to amount to re-arguing matters in dispute between Mr Quach and the HCCC that have already been exhaustively litigated in NSW (at [2] above).
34. That exception relates to appeal ground 3 quoted at [28] above, which alleges that RU made a false affidavit when she claimed to be "a solicitor and barrister in the State of New South Wales", the falsity being established by Mr Quach's discovery that RU is not "registered" as a barrister in NSW.
35. Mr Quach's claim establishes not impropriety on RU's part, but ignorance on Mr Quach's part.
36. In NSW, before the adoption of the Legal Profession Uniform Law in 2014, a person who had satisfied the criteria for admission to the legal profession may have been admitted by the Supreme Court as, among other things, "a barrister and solicitor" or "a solicitor and barrister". The Legal Profession Uniform Law now refers to "admission ... as a lawyer" (however expressed).
37. An admitted lawyer then needs a further qualification in order to be able to work as a lawyer, being the holding of a current practising certificate in an appropriate category. Those categories include a variety of forms of practice as a "solicitor", and practice "as or in the manner of a barrister only" (s 47, Legal Profession Uniform Law). A lawyer may have no more than one practising certificate at a time (s 48, Legal Profession Uniform Law).
38. If RU holds a practising certificate issued by the NSW Law Society, it seems that she would not be permitted also to hold a practising certificate as a barrister. The fact that she does not hold a barrister's practising certificate does not mean that her claim to be "a solicitor and barrister" in NSW is false, at least if her claim was intended to reflect that she had been "admitted" as a solicitor and barrister.
NSW government policy on costs in public prosecutions
39. The first conduct relied on by Mr Quach in the PPO application was that the HCCC had breached:
NSW State Government Policy not to seek cost for professional cost against unsuccessful defendants in public prosecutions.
40. Mr Quach drew my attention to an extract from a publication of the NSW Judicial Commission, the Local Court Bench Book, which says at [83-000]:
Costs may be awarded to successful parties in criminal proceedings in the local court pursuant to four statutes: Criminal Procedure Act 1986, Costs in Criminal Cases Act 1967, Crimes Act 1900 and the Suitors' Fund Act 1951. As a matter of policy, the Police Service, and Commonwealth and State Directors of Public Prosecution do not ordinarily apply for professional costs against unsuccessful defendants, although witness expenses and court costs may be sought.
41. Mr Quach relies on this extract to assert that the HCCC should not be seeking to recover costs it incurred in the proceedings (the HCCC proceedings) that it took against him under the Health Care Complaints Act 1993 (NSW). There are several deficiencies in his argument:
(a) Mr Quach refers to "public prosecutions", but the Bench Book refers to "criminal proceedings", and the HCCC proceedings were not apparently "criminal proceedings";
(b) the relevant HCCC proceedings were not in the Local Court but in NCAT and the NSW Court of Appeal;
(c) the HCCC proceedings were not brought under any of the specified Acts; and
(d) the HCCC proceedings were not conducted by the Police Service or a Commonwealth or State Director of Public Prosecutions.
42. Accordingly, the policy set out (qualified anyway by the word "ordinarily"), that the Police Service and the Directors "do not ordinarily apply for professional costs against unsuccessful defendants" has no application in this case.
43. In fact, the next sentence in the Bench Book may be more relevant:
Private informants, and bodies such as councils, the Royal Society for the Prevention of Cruelty to Animals NSW and the Roads and Traffic Authority, however, will usually seek professional costs against unsuccessful defendants.
44. This sentence does not specifically refer to the HCCC either, and it still only applies to "criminal proceedings" in the Local Court, but the HCCC would seem to be more similar to bodies such as councils and the Roads and Traffic Authority than to police and public prosecutors.
45. Mr Quach has not established that the HCCC is, in seeking to recover costs against him, in breach of any NSW state government policy about the recovery of costs.
46. In any case, as Magistrate Morrison concluded, even if the HCCC were acting contrary to a policy of the sort alleged by Mr Quach, this would not mean that RU's conduct in writing to Mr Quach in her capacity as a legal officer working for the HCCC could amount to "personal violence" as asserted by Mr Quach (even personal violence consisting only of "harassing" conduct).
Prosecution Guidelines about dealing with unrepresented accused persons
47. Next, Mr Quach in the PPO application alleged that the HCCC had breached:
Public prosecution guidelines by the NSW ODPP not to communicate with unrepresented accused directly.
48. Mr Quach relied on the Prosecution Guidelines published by the NSW Office of the Director of Public Prosecutions (ODPP), which include Guideline 23, relating to "unrepresented accused persons" as follows:
Particular care must be exercised by a prosecutor in dealing with an accused person without legal representation. The basic requirement, while complying in all other respects with these guidelines, is to ensure that the accused person is properly informed of the prosecution case so as to be equipped to respond to it, while the prosecutor maintains an appropriate detachment from the accused person's interests.
Oral communications with an unrepresented accused person, so far as practicable, should be witnessed if face to face and promptly noted in all cases. A record should be maintained of all information and material provided to an unrepresented accused person. Prosecutors may also, where appropriate, communicate with the accused person through the court.
While a prosecutor has a duty of fairness to an accused person, it is not a prosecutor's function to advise an accused person about legal issues, evidence, inquiries and investigations that might be made, possible defences or the conduct of the defence. However, the prosecutor also has a duty to ensure that the trial judge gives appropriate assistance to the unrepresented accused person.
49. Guideline 23 does not as such prohibit a prosecutor communicating with an unrepresented accused directly; rather, it recognises that particular care need to be taken in such communications, and requires that, so far as practicable, such communications should be witnessed, and that all communications should be noted.
50. Furthermore, the guidelines do not seem to apply of their own force to the activities of the HCCC. The 2007 publication of the Prosecution Guidelines (apparently the most recent) is described in an introduction signed by the then Director of Public Prosecutions (DPP) as follows:
The Director of Public Prosecutions Act 1986 and associated legislation created for the first time in NSW an independent professional service for the prosecution of serious criminal offences. These guidelines are issued pursuant to section 13 of the Act. A reference to a prosecutor in the document is a reference to any legal practitioner representing the interests of the Crown or of the Director in criminal and related proceedings pursuant to the Act.
51. The argument made by Mr Quach in support of his submission that the Prosecution Guidelines applied to HCCC proceedings in NCAT was as follows:
(a) there are offences created by the Health Care Complaints Act that can be prosecuted in the Local Court (s 100 of that Act);
(b) section 90A of the Health Care Complaints Act provides for the appointment of a "director of proceedings", one of whose functions is:
to determine whether [a] 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
(c) section 28 of the Director of Public Prosecutions Act 1986 (NSW) (headed "Attorney-General's functions to prevail"), provides that the DPP cannot, without the Attorney-General's consent, exercise a function inconsistently with the manner in which the Attorney-General has exercised the function in the same matter.
52. The reference to s 28 of the Director of Public Prosecutions Act has no significance that I can discern. The most sense I can make of the other two parts of the argument is that Mr Quach is suggesting that:
(a) the use of forms of the word "prosecute" in the Health Care Complaints Act to describe taking proceedings in respect of health care complaints; and
(b) the creation in that Act of incidental criminal offences (eg an offence of intimidating or bribing a complainant: s 98 of that Act) that may be the subject of criminal prosecution, in a court;
means that the HCCC is bound by the Prosecution Guidelines in dealing with complaints made under the Health Care Complaints Act and dealt with in proceedings in a "Civil and Administrative" tribunal.
54. The direct communication to which Mr Quach took exception was, it has to be said, peculiar and probably ill-advised. It involved a photograph of three young women, one of them said to be RU, sitting at what appears to be an outside cafe table somewhere in Sydney. On 8 December 2014, the photograph was sent by Sarah Connors, whose address block identifies her as a Senior Legal Officer at the HCCC, to three recipients including RU. The document tendered by Mr Quach then shows that some four minutes later, the photograph was sent by a Barrie Goldsmith to a C McKeown, and copied to Mr Quach. It is not apparent from the document how the photograph got from Ms Connors to Mr Goldsmith.
55. It is hard to know what to make of this piece of evidence.
56. In particular, there is no evidence that RU, or even Ms Connors, was involved in sending the photograph to Mr Quach, or even to Mr Goldsmith, at all. I am told that Mr Goldsmith was Mr Quach's lawyer, and so there may be an argument that his forwarding of the photograph amounted to a communication from the HCCC to Mr Quach; however if so, it was a communication to Mr Quach via his lawyer, and therefore, apparently, outside the scope of the guideline relating to unrepresented persons.
57. No doubt it is generally good policy for a litigator representing any kind of government entity to take great care in dealing with an unrepresented party in that litigation, and especially to keep comprehensive records of communications with such a party. Nothing about the email exhibited before me, however, could justify a finding that the HCCC had breached the Prosecution Guidelines, even if they were applicable, and I have no reason to believe that there was any breach of any expectation or requirement for the HCCC to keep proper records of all such communications (since the document was tendered by Mr Quach, there is no evidence before me about whether it could also be found in records of the HCCC).
58. Perhaps the most significant conclusion to be drawn from this piece of evidence is that however the photograph finished up with Mr Quach, even if it did so in breach of some unidentified policy or rule applicable to the HCCC, it did so in December 2014, more than two years ago. I cannot see how that fact could ground a finding by a magistrate in April 2016 that RU personally had engaged in personal violence towards Mr Quach "and may engage in personal violence towards [Mr Quach] during the time the order is proposed to operate if the order is not made" (s 46(1)(b) of the Domestic Violence and Protection Orders Act).
Breach of undertaking relating to High Court applications
59. Finally, in the PPO application, Mr Quach said that the HCCC had breached:
Undertaking to the NSW Court of Appeal, on 29 June 2015, not to enforce any cost orders until any or all appeals have been exhausted at the High Court.
60. Magistrate Morrison dealt with this alleged breach as shown in the transcript quoted at [10] above, following the insertion "[Breach 3]".
61. The undertaking given to the NSW Court of Appeal, in writing, on 29 June 2015 was as follows:
The Health Care Complaints Commission undertakes to the Court that it will not seek to enforce the costs orders made by 1. The Court of Appeal in proceedings 2015/48269 and 2015/67618 and 2. NCAT on 21 April 2015, prior to the High Court determining the applications for special leave in respect of these Court of Appeal proceedings.
62. Mr Quach had made special leave applications to the High Court in respect of the two costs orders before the undertaking was given.
63. Those special leave applications were dismissed on13 August 2015.
64. Before me, Mr Quach said that he had tried to make further special leave applications in relation to the two NSW Court of Appeal matters, but on new grounds, and that he had been told at the High Court Registry that whether his new applications would be filed would be determined by a single judge. However, he said, because he had sought to file new special leave applications, the undertaking given by the HCCC had not expired.
65. The fact that Mr Quach might intend to try to make further special leave applications at regular intervals for the rest of his life does not in my view mean that the undertaking given to the Court of Appeal can be interpreted as an undertaking to refrain from enforcing the costs orders concerned, either indefinitely or until the High Court orders that no further special leave applications in the relevant matters are to be filed.
66. I understand that Mr Quach argues, among other things, that because the undertaking refers to the applications, plural, it is not limited to the applications in existence when the undertaking was given. Since the undertaking related to two applications that had been made and not finally disposed of, the undertaking necessarily referred to "applications" in the plural. The use of the plural form cannot be relied on to read the undertaking as if it had the extended meaning asserted by Mr Quach.
67. I am satisfied that once the special leave applications on foot when the undertaking was given had been dismissed, the undertaking provided no ongoing bar to the HCCC enforcing the costs orders concerned or, in particular, to RU taking relevant steps to enforce those orders on the HCCC's behalf.
68. At the hearing of the application, and in the context of the alleged breach of this undertaking, Mr Quach raised another "ground" of appeal, namely that Refshauge J sitting as a single judge in the Court of Appeal had ruled that Mr Quach had a "prima facie" case of harassment, and that this "nullifies Magistrate Morrison's decision entirely". Refshauge J said:
HIS HONOUR: All right. The basis on which you get a protection order is if you can show the court that you have been subject to conduct that is harassing. All right? Now, you say the conduct that's harassing is that notwithstanding the undertakings you are still being the subject of demands for payment. Now, prima facie - and I haven't heard Mr Maher - but prime facie that seems to me to be harassment so it may be that you've got a good case on your appeal. I haven't heard Mr Maher. I haven't heard the case. I understand that. The motives or the circumstances under which [RU] makes her demand seem to me to be completely irrelevant. They don't - - -
DR QUACH: The relevance - - -
HIS HONOUR: They don't change whether she's made the demand and that's the question that has to be determined by the court. I mean why she's making the demand is irrelevant in the context of the fact that there are cost orders. Now, the undertaking is an act that intervenes between that and, as I say, just looking at those two documents, seems to suggest that her letter of 18 December may be inappropriate. I'm not making a decision about that but I'm saying that prima facie I can see the point about that.
On the other hand, the letter simply talks about an assessment rather than payment, although the final paragraph might be said to suggest payment. I can understand that there might be an argument about whether that's really harassment or not, however, what's behind that is irrelevant to whether that is harassing or not - - -
DR QUACH: Your Honour - - -
HIS HONOUR: - - - because whether she is properly motivated or whether she is malevolent or incompetent or has a different view about the undertaking or has received different instructions or whatever may be relevant to whether she's justified in making those demands or not but the fact that she's made them is sufficient for your purposes to say, "I am being harassed."
DR QUACH: Thank you.
69. It is clear there was no "ruling" made (and equally clear that the issue was not as such before Refshauge J anyway).
70. Towards the end of the hearing before Refshauge J, counsel for the respondents explained the argument about the limited scope of the undertaking relied on by Mr Quach. His Honour invited Mr Quach to make further submissions; Mr Quach said that the undertaking was an "exhaustive" undertaking and that he had sought to file further special leave applications (he was up to his third attempt). After that, Refshauge J did not return to the question whether Mr Quach had been harassed by RU, but he concluded that none of the material sought by Mr Quach was relevant to the appeal from the Magistrates Court that was listed to be heard by me.
71. Mr Quach submitted before me that Refshauge J had not changed his mind about there being a prima facie case of harassment.
72. My conclusion that the undertaking relied on by Mr Quach had expired on 13 August 2015 when the special leave applications were refused, well before RU emailed Mr Quach on 18 December 2015, seems to eliminate the basis on which Refshauge J expressed a view that prima facie there might have been harassment.
73. Even if Refshauge J exercising the powers of the Court of Appeal had concluded that there was a prima facie case of harassment, the appeal as such was not before him and his conclusion would not have bound me in my consideration of the appeal.
74. Magistrate Morrison concluded that nothing alleged by Mr Quach could constitute "personal violence" such as to justify the making of a PPO; in other words, that no reasonable cause of action was disclosed by Mr Quach's application.
75. I am satisfied, having considered those grounds specified in the PPO application, that none of them could possibly have provided a basis for the making of a PPO against RU. There was no error in his Honour's summary dismissal of Mr Quach's application.
Challenges to the respondent's legal representation
76. On 8 March 2017, Mr Quach lodged an application in proceedings seeking orders prohibiting the representation of RU by the NSW Crown Solicitor, the ACT Government Solicitor or a named solicitor in private practice in the ACT (whose firm had at one stage been acting as agent for the NSW Crown Solicitor). This application was made on what would seem to be the scurrilous and unsustainable grounds that the invoices RU had issued to him were RU's private invoices, that she was in issuing those invoices operating outside the business of the NSW Government, and that accordingly she could not be represented by lawyers acting on behalf of the NSW Government.
77. As far as I was concerned, the appeal in relation to which the various lawyers had been acting had been heard (except that judgment had been reserved subject to re-opening pending the outcome of the contempt application dealt with in Quach v RU (No 1) [2017] ACTSC 233). It was therefore too late, and entirely pointless, to seek orders that the lawyers who had appeared on the appeal should not have acted.
78. Quite apart from that, the grounds for Mr Quach's applications were, as noted, scurrilous, apparently unfounded as to facts alleged, and nonsensical as to legal propositions. For instance, Mr Quach asserted that "Legal costs do not apply to ... a commercial or government client" because, under the Legal Profession Uniform Law, pt 4.3 (headed "Legal Costs") does not apply to such clients; pt 4.3, however, is intended to protect clients of law practices, and the exclusion of commercial and government clients simply leaves such clients to look after themselves in their dealing with law practices. In no way does it affect their entitlement to costs awards in litigation.
79. For these reasons, I declined to deal with the application.
80. The appeal is dismissed, and Mr Quach is to pay the respondent's costs.
I certify that the preceding eighty [80] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.
Quach
RU
(1979) 28 ALR 191
(1936) 55 CLR 499