Quach v Butt
[2017] ACTCA 4
•15 February 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Quach v Butt |
Citation: | [2017] ACTCA 4 |
Hearing Date: | 22 December 2016 |
DecisionDate: Reasons Date: | 22 December 2016 15 February 2017 |
Before: | Refshauge J |
Decision: | 1. The application be dismissed. 2. The appellant be ordered to pay the respondent’s costs. |
Catchwords: | PRACTICE AND PROCEDURE – INTERLOCUTORY APPEAL – Leave to Appeal from the Supreme Court – single justice sitting in the Court of Appeal – leave to appeal against orders setting aside subpoenas – appeal against dismissal of – no legitimate forensic purpose for the material requested – application for leave to appeal dismissed – order for costs made PRACTICE AND PROCEDURE – APPEAL – Supreme Court appeal against dismissal by Magistrates Court of application for issue of subpoenas in appeal – subpoenas - setting aside subpoenas – need for legitimate forensic purpose for subpoenas – application for leave to appeal dismissed |
Legislation Cited: | Civil and Administrative Tribunal Act 2013 (NSW), s 60 Civil Procedure Act 2005 (NSW), s 98 Domestic Violence and Protection Orders Regulation 2009 (ACT), regs 69, 93 Legal Profession Regulation 2005 (NSW), regs 111B, 111B(1)(c)(ii) Court Procedures Rules, rr 1721, 5001, 6604, 6609, Sch 4, Pt 2.17 |
Cases Cited: | Arrow International Australia Ltd v Konstrukt Pty Ltd [2012] ACTCA 37; 7 ACTLR 48 Associated Dominion Assurance Society Pty Ltd v John Fairfax and Sons Pty Ltd (1952) 72 WN (NSW) 250 Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 |
Texts Cited: | Alyson Ashe, Legal Costs New South Wales (LexisNexis Butterworths, 1994) looseleaf Macquarie Dictionary (Macquarie Dictionary Publishing, 5th ed, 2009) David O’Brien, Special Leave to Appeal (Supreme Court of Queensland Library, 2nd ed, 2007) |
Parties: | Michael Van Thanh Quach (Appellant) Brianna Mary Butt (Respondent) New South Wales Treasury (Respondent) New South Wales Health Care Complaints Commission (Respondent) |
Representation: | Counsel Dr Quach (In person) (Appellant) Mr J Maher (Respondents) |
| Solicitors Self Represented (Appellant) Kamy Saeedi Law (as agent for NSW Crown Solicitors Office) (Respondents) | |
File Number: | ACTCA 59 of 2016 |
Decisions under appeal: | Court/Tribunal: ACT Supreme Court Before: Penfold J Date of Decision: 16 September 2016 Case Title: Quach v Butt Court File Number: SCA 36 of 2016 Court/Tribunal: ACT Supreme Court Before: Burns J Date of Decision: 19 October 2016 Case Title: Quach v Butt Court File Number: SCA 36 of 2016 |
REFSHAUGE J:
On 26 February 2016, the applicant, Michael Van Thanh Quach, a medical practitioner, applied to the ACT Magistrates Court for a protection order against the first respondent, Brianna Butt, an officer of the Health Care Complaints Commission of New South Wales.
On 13 April 2016, Magistrate Morrison dismissed the application. Dr Quach has appealed against that decision.
The appeal is listed to be heard on 27 February 2017. In preparation for the appeal, Dr Quach, applied for and had issued to him by the Registry two subpoenas, one addressed to Ms Butt and the other to the NSW Treasury. On 16 September 2016, Penfold J set aside the subpoenas.
It appears that Dr Quach had a further subpoena addressed to the NSW Treasury issued by the Registry and also one to the Westpac Banking Corporation. On 19 October 2016, Burns J set aside these two subpoenas.
Dr Quach wishes to appeal against these orders. His application to do so came before me on 22 December 2016. I dismissed the application. These are my reasons for doing so.
Jurisdiction
Under s 37E of the Supreme Court Act 1933 (ACT), the Court of Appeal has jurisdiction to hear and determine appeals from orders of the Supreme Court, except orders of the Registrar, the Full Court, and the Court of Appeal itself. Thus, there is jurisdiction for the Court to entertain the appeal that Dr Quach wishes to take from the orders of Penfold J and Burns J.
Section 37E(4) of the Supreme Court Act, however, provides that where the order is an interlocutory order, leave to appeal is required.
What is an interlocutory order is not always easy to determine, as I pointed out in Arrow International Australia Ltd v Konstrukt Pty Ltd [2012] ACTCA 37; 7 ACTLR 48 at 52-3; [9]-[17]. Indeed, it is sometimes said that the best thing to do when deciding this is to look at the practice books to see what has already been decided.
I have done that and note that in Slaveski v Attorney-General (Vic) [2013] VSCA 165 at [1], Weinberg and Priest JJA held that an order setting aside a subpoena was an interlocutory order. With respect, I do not consider that there can be any doubt about that.
Accordingly, Dr Quach required leave before he could appeal to the Court of Appeal from the two orders.
The purpose of the requirement for leave is to limit “a string of appeals from interlocutory judgments of a single judge in the course of a trial which delay and interfere with the proper conduct of a trial and hamper the proper administration of justice”: Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 at 431. It may also be accepted that with the increase in litigation and the pressure on Court resources, which bring long legal delays (Commissioner of Australian Federal Police v Razzi (1991) 101 ALR 425 at 430), three judges of the Court of Appeal should not be troubled with an interlocutory appeal unless the Court, constituted by a single judge, can be satisfied that the decision against which the appeal is sought to be taken is wrong, or likely to be wrong, and that substantial injustice will be done by leaving that erroneous decision unreversed. Indeed, any interlocutory decision which can affect the final result of proceedings can be addressed later in an appeal from the final order: Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 at 483-4; [5]-[8], 497; [51].
In Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT) [2008] ACTCA 9; 2 ACTLR 44 at 52-4; [29]-[40], I considered the various authorities as to the approach to be taken by a court considering whether to grant leave to appeal. I summarised them in Arrow International Australia Ltd v Konstrukt Pty Ltd at 58-9; [58], as follows:
(a) leave will be granted sparingly to avoid delaying and fragmenting the hearing of cases;
(b) a Court will be particularly hesitant to grant leave where the decision is one in respect of practice and procedure or is made in the exercise of a discretion;
(c) decisions which, though interlocutory, determine substantive rights will more readily be the subject of the grant of leave;
(d) the party seeking leave bears the onus of satisfying the court of the necessary criteria to justify the grant of leave;
(e) the court will ordinarily grant leave where the decision is wrong and prejudice will be suffered by the appellant;
(f) leave may also be granted where the decision is attended with sufficient doubt to warrant its reconsideration or, to put it another way, where the decision is ‘attended with difficulty and [its] correctness is open to dispute’ (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400) and, if it is wrong, significant consequences will be suffered by the applicants; and
(g) it may be a factor favouring the grant of leave that:
(i) the decision involves a matter of public importance; or
(ii)the decision may affect the fairness of the trial, a consideration under s 21 of the Human Rights Act 2004 (ACT), though this can also weigh against the decision if the appeal results in unfair delay or fragmentation of the trial.
I also noted in Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT) at 52; [29]:
It may be that these principles should be applied more liberally in the light of s 21 of the Human Rights Act 2004 (ACT) which expresses the right to a fair trial since an error in the interlocutory decision may have the effect of derogating from the fairness of the trial.
These are the principles to be applied and I shall do so. In particular, the decisions from which the appeal is sought to be taken in this case is a discretionary one.
The facts
As this matter has some complexity, it is necessary to consider some of the facts that set a context to the application for leave to appeal. In this, I had some helpful submissions from Mr J Maher, who appeared for the respondents, as well as the material on which Dr Quach relied.
The genesis of this application is that Dr Quach was the subject of proceedings before the NSW Civil and Administrative Tribunal (the Tribunal) brought by the second respondent, the Health Care Complaints Commission: Health Care Complaints Commission v Quach [2015] NSWCATOD 2. In those proceedings, the Tribunal found that the complaints against Dr Quach were made out and that his conduct constituted both unsatisfactory professional conduct and professional misconduct.
The Tribunal made interim orders imposing conditions on Dr Quach’s right to practice. Dr Quach filed summonses challenging the right of the Tribunal to impose those conditions and the right of the Tribunal to continue to hear the complaints. As required in NSW, those summonses were removed to the Court of Appeal where they were heard and dismissed, and the Court ordered Dr Quach to pay the costs of the Health Care Complaints Commission: Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63. An application to the High Court for leave to appeal from that dismissal was itself dismissed: Quach v New South Wales Civil and Administrative Tribunal [2015] HCASL 131.
As a result, the Tribunal considered the consequential decisions to be made and on 21 April 2015, cancelled Dr Quach’s registration and made other orders, most relevantly for these proceedings, an order that Dr Quach pay the costs of the Health Care Complaints Commission in and about the proceedings. See Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32.
Dr Quach challenged this decision of the Tribunal in the NSW Court of Appeal. The Court of Appeal dismissed that challenge and ordered Dr Quach to pay the costs of the Health Care Complaints Commission: Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10 (Quach v HCCC (No 1)).
There were other proceedings commenced by Dr Quach concerning these matters. It is not relevant to identify all of them. In a number of them, however, Dr Quach was again ordered to pay costs. See, for example, Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 49; Quach v New South Wales Health Care Complaints Commission (No 3) [2016] NSWCA 284 (Quach v HCCC (No 3).
As a consequence of the order of the Tribunal as to costs, Ms Butt, a legal officer in the Health Care Complaints Commission, prepared an itemised bill of costs for the proceedings in the Tribunal and, forwarding a copy of it to him sought payment of the itemised costs from Dr Quach.
Subsequently, as a consequence of the order of the Court of Appeal in 2015, Ms Butt prepared a further itemised bill of costs for those proceedings and also sought payment of it from Dr Quach.
Dr Quach says in an affidavit filed in support of his application for leave to appeal that Ms Butt:
criminally harassed [me] for money by way of conducting a prosecution and issuing private invoices superimposed on funding already received from NSW Treasury as a Governmental legal practitioner.
It appears that this is the basis for the claim Dr Quach made in his application for a protection order under the Domestic Violence and Protection Orders Act 2008 (ACT). It was, it became clear, a claim of harassment. This dismissal of that application is the subject of the pending appeal to the Supreme Court.
Further evidence
Ordinarily, an appeal is required to be decided on the basis of the evidence before the primary court, that is, in this case, the Magistrates Court. In some cases, the appellate court has no power to consider any other evidence, as in appeals to the High Court: Eastman v The Queen [2000] HCA 29; 203 CLR 1 at 12-3; [17], 26; [76], 41; [133], 63; [190].
In this jurisdiction, however, the Supreme Court has power to receive further evidence on appeal from the Magistrates Court: s 214 of the Magistrates Court Act 1930 (ACT). That power is constrained, although permitting a wide range of further evidence to be adduced as explained in Grooms v Toohey [2012] ACTSC 28; 7 ACTLR 1 at 8-10; [35]-[37]. In essence, however, the further evidence must be received if it is in the interests of justice, or the parties consent, and may be received if the evidence is likely to be credible, would have been admissible at trial, and there is a reasonable explanation for the failure to adduce it at trial.
Clearly, the further evidence is only admissible if it is relevant to a fact in issue in the proceedings from which the appeal has been taken. The admission of such evidence must be directed towards the question of whether the decision of the court below was correct in all the circumstances, including in the light of the further evidence sought to be adduced.
The issues in the Magistrates Court
Because, inevitably on an application for leave to appeal, this Court will not have all the material necessary to make a full evaluation of all the relevant circumstances of the original decision the subject of the appeal, it must do the best it can and rely on the parties to ensure that the appropriate circumstances are brought to its notice.
In this case, Dr Quach was originally seeking a protection order under the Domestic Violence and Protection Orders Act. The relevant sections of that Act are as follows:
7 Principles for making protection orders
(1) In deciding an application for a protection order, the paramount consideration is –
...
(b) for a personal protection order (other than a workplace order) – the need to ensure that the aggrieved person is protected from personal violence; and
...
(2) If a protection order is to be made on an application under this Act, it must be the protection order that is least restrictive of the personal rights and liberties of the respondent as possible that still achieves the objects of the Act and gives effect to subsection (1).
...
11 What conduct do personal protection orders restrain?
...
(4) A personal protection order (other than a workplace order) –
(a) restrains the respondent from engaging in conduct that constitutes personal violence in relation to the aggrieved person; and
(b) may include a prohibition mentioned in section 48 (What final orders (other than workplace orders) may contain).
12 Do protection orders cover conduct outside ACT?
A protection order covers conduct within or outside the ACT.
...
14 What is personal violence?
(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.
So far as Dr Quach was able to help me, it appears that he based his complaint on s 14(1)(c) of the Domestic Violence and Protection Orders Act, that is that Ms Butt’s contact with him is harassing.
There is no determinative decision on the meaning of harassing. The Macquarie Dictionary (Macquarie Dictionary Publishing, 5th ed, 2009) defines it as follows:
1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid. 2. to disturb persistently; torment. [French harasser, from Old French harer set a dog on].
Some help is to be gained from the following comments of Hill J in Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549; 114 FCR 472 at 485; [60], as follows:
The word “harassment” in my view connotes conduct which can be less serious than conduct which amounts to coercion. The word “harassment” means in the present context persistent disturbance or torment. In the case of a person employed to recover money owing to others, as was the first Respondent in McCaskey [Australian Competition and Consumer Commission v McCaskey (2000) 104 FCR 8], it can extend to cases where there are frequent unwelcome approaches requesting payment of a debt. However, such unwelcome approaches would not constitute undue harassment, at least where the demands made are legitimate and reasonably made. On the other hand where the frequency, nature or content of such communications is such that they are calculated to intimidate or demoralise, tire out or exhaust a debtor, rather than merely to convey the demand for recovery, the conduct will constitute undue harassment (see per French J in McCaskey at [48]). Generally it can be said that a person will be harassed by another when the former is troubled repeatedly by the latter. The reasonableness of the conduct will be relevant to whether what is harassment constitutes undue harassment.
The subpoenas
All the subpoenas were subpoenas to produce documents. In such subpoenas, the documents sought to be produced are set out in a Schedule. Accordingly, it is only necessary for the purpose of these reasons to set out the Schedule to each relevant subpoena as these identify the documents Dr Quach seeks to be produced under each subpoena. The Schedules are as follows:
1. Subpoena to Ms Butt
The Schedule sought production of the following documents:
i.The Contracts of Employment (including details of salary, allowances and any other monetary arrangements) of Ms Brianna Mary Butt:
(a) Legal Officer in October 2012
(b) Senior Legal Officer in 2015
ii.Curriculum Vitae of Ms Brianna Mary Butt.
iii.Qualifications of Ms Brianna Mary Butt:
(a)New South Wales Solicitor’s Practising Certificate
(b)New South Wales Barrister’s Practising Certificate
iv.Any directions, records or notations from the Commissioner of Ms Butt’s superior(s) in the New South Wales Health Care Complaints Commission for Ms Brianna Butt to:
(a)Seek a costs order against the unsuccessful defendants.
(b)Issue letters of demand for money on the 9 June 2015 and 18 December 2015.
v.Ms Butt’s personal financial stake or commission of the total amount invoiced as services rendered in her name, as it appears on the invoices.
vi.Please produce evidence of any arrangements, understanding (written/oral) or otherwise, for Ms Butt to itemise legal services rendered with the intention of seeking costs against unsuccessful defendants.
vii.Please produce the following information for Ms Brianna Mary Butt:
(a)Personal and company (if any) Australian Business Number
(b)Name of trading entity (sole trader/company/partnership)
(c)Previous two years income tax returns for 2014 and 2015 – personal and company (if any)
(d)Name of accountants.
viii.Please produce evidence of when Ms Butt first had knowledge of the practise of itemising legal services rendered with the intention of seeking costs against unsuccessful defendants in the New South Wales Health Care Complaints Commission.
ix.Please produce any evidence of Ms Butt itemising legal services rendered in the Office of the Director of Public Prosecutions, as it appears on two invoices.
2. First subpoena to NSW Treasury
The Schedule sought production of the following documents:
1.Please provide details of ‘approved’ funding for each individual accounts (that is each individual category) in the submitted budgets from the New South Wales Health Care Complaints Commission for the following financial year:
a. 2003-2004
b. 2004-2005
c. 2005-2006
d. 2007-2008
e. 2008-2009
f. 2009-2010
g. 2010-2011
h. 2011-2012
i. 2012-2013
j. 2013-2014
k. 2014-2015
2.Please specify if any account(s) within any budgets were refused funding for the financial years listed in number one.
3.Please specify any ‘advances’ or ‘extra’ funding above and beyond budget estimates for any of the financial years listed in number one.
4.Please provide the name of the ‘officer(s)’ that approved the funding for the New South Wales Health Care Complaints Commission for the financial years listed in number one.
3. Second subpoena to NSW Treasury
The Schedule sought production of the following documents:
1.Please provide the name of the person who authorised and formally instructed the New South Wales Crown Solicitors’ Office to object the subpoena served on 5 September 2016 on New South Wales Treasury.
2.Please provide the formal letter of engagement of New South Wales Crown Solicitors to act on behalf of the New South Wales Treasury in relation to the subpoena served on the 5 September 2016.
3.Please provide the formal instructions from New South Wales Treasury to the New South Wales Crown Solicitors’ Office.
4. Subpoena to Westpac Banking Corporation
The Schedule sought production of the following documents:
1.For the following bank account:
BSB: [redacted for legal reasons]
Account Number: [redacted for legal reasons]
Please provide details of:
a. Name(s) on the account.
b. Alternative names for acceptance of deposits.
c. Date of opening of account.
d. Australian Business Number for this account.
e. All authority(ies) or Signatory(ies) to this account (past and present).
f. All transaction history of account from opening to current.
g. For each transaction, please identify:
i. payer/depositor (including name, account details, location if possible) and,
ii payee/recipient (including name, account details, location if possible).
h. For overseas transactions (if any), please identify:
i. the payer/depositor (including name, account details, country) and,
ii. payee/recipient (including name, account details, country).
i. Please identify all linked accounts, eg credit card(s), debit card(s), other accounts that can access this account (if any, please specify name of person(s), account details (including BSB, account number), location eg state, country).
2.Please identify the cardholder for the following receipt.
Please provide details of:
a. Name of cardholder
b. Date of birth
c. Address as at 12 January 2008
d. Current address
Setting aside a subpoena
The Supreme Court has power to set aside a subpoena: r 6604 of the Court Procedures Rules 2006 (ACT). That power may not exhaust all the powers of the Court to do so as it may well still have common law power for that purpose as identified in: Trade Practices Commission v Kimberley Homes Pty Ltd (1989) 217 ALR 110 at 113, though the reason his Honour held that there was such a common law power does not apply here as this rule gives a wide scope to the persons who may seek to have a subpoena set aside.
There are a wide range of bases on which a subpoena may be set aside, being:
· it is too wide, as, for example, where it is used as a substitute for discovery;
· it is oppressive as, for example, when it requires the addressee to undertake an unreasonable task in answering it;
· it is an abuse of process as, for example, where it is sought for a purpose other than that of the litigation; or
· where it is fishing, that is seeking to find whether there is a basis for it rather than being aware of that basis.
In the circumstances where the Court is concerned about these issues, Hunt J with whom Carruthers and Grove JJ agreed, explained in R v Saleam (1989) 16 NSWLR 14 at 18 that the Court:
should require counsel for the accused to identify expressly and with precision the legitimate forensic purpose for which he seeks access to the documents, and the judge should refuse access to the documents until such an identification has been made.
Where the applicant for the subpoena is not able to identify such a legitimate forensic purpose, then the subpoena should be set aside.
The two grounds that seem relevant here are that the subpoenas the subject of the application for leave to appeal is either an abuse of process or is fishing.
Whether a subpoena is an abuse of process may be shown in a number of ways. A helpful summary was given by Moffitt P in Waind v Hill [1978] 1 NSWLR 372 at 381-2, as follows:
the person to whom the subpoena is addressed may seek to, and have, the subpoena set aside on the ground that it was improperly issued and an abuse of the power to compel the production of documents in any one of a number of ways. Such a case is where the subpoena is used for the purpose of discovery. The essential feature of discovery in this connection, as appears from Burchard's case [[1891] 2 QB 241 at 247-8] and Small's case [(1938) 38 SR (NSW) 564 at 574] is that the person to whom the subpoena is addressed will have to make a judgment as to which of his documents relate to issues between the parties. It is oppressive to place upon a stranger the obligation to form a judgment as to what is relevant to the issue joined in a proceeding, to which he is not a party. Hence it is an abuse of the use of a subpoena to impose this obligation.
...
The issue of a subpoena may involve an abuse of the power in other ways and, as stated in Small's case objection to production to the court may be on other grounds. Thus, it would be an improper use of the subpoena if it were not sought for the purpose of the litigation, but for some spurious purpose, such as to inspect the documents in connection with other proceedings, or for some private purpose, or in collusive proceedings to give them publicity. A witness might argue the documents must be sought for some undefined spurious reason, as they have no conceivable relation to the proceedings. The court would jealously consider any of such submissions having regard to the invasion of the private rights of the stranger occasioned by the operation of the subpoena.
Whether a subpoena is fishing has been colourfully but seminally described by Owen J, with whom Street CJ and Herron J agreed, in Associated Dominion Assurance Society Pty Ltd v John Fairfax and Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254, as follows:
A ‘fishing expedition’, in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the Court pointing to the probability that a party to litigation has in his possession documents tending to destroy his care or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere ‘fishing expedition’.
Basis for the Application
Dr Quach made an affidavit which set out the basis on which he said the application was made. His affidavit was more of a submission, but it did also set out some facts. It is not necessary to set out all of it. I have already referred to part of it above (at [23]). Further to that complaint, Dr Quach added:
IV. Ms Butt harassment for money
i.Ms Brianna Mary Butt acted as the prosecuting solicitor for the New South Wales Health Care Complaints Commission in [the proceedings in the Tribunal referred to above at [16]-[18]].
ii.Ms Butt demanded money in contempt of the New South Wales Court of Appeal Order on 29 June 2015 ...
iiiAs evident in the invoices that appear in the Appeal Book for this matter, Ms Butt has acted in breach of the High Court ruling in Re JJT; Ex parte Victoria Legal Aid [1998] HCA 44; (1998) 195 CLR 184 ...
Ms Butt has sought cost orders, in the absence of any application for cost orders in the Health Care Complaints Commission Act 1993 (NSW) [sic].
ivThe statutory interpretation of the invoice is that the invoices are private invoices of Ms Butt’s and the other person name, Ms Sarah Connors, for the private supply of their legal services. This invoice was raised by Ms Butt (and Ms Connors) while they hold Government Legal Practitioner Practising Certificates, and the services itemised in the invoices have already been paid for by New South Wales Treasury.
A further ground was said to be the invalidity of the appointment of the presiding member of the Tribunal, Marks ADCJ. As to this, Dr Quach set out in his affidavit, by reference to the decision of NSW Court of Appeal in Quach v HCCC (No 1):
i.The appointment of Acting District Court Judge Frank Marks in the strike out hearing on the 10 September 2014, was invalid on the grounds of the findings at [24] and [30].
...
iiTherefore, the findings of the NSW Court of Appeal are that Acting District Court Judge Frank Marks:
1. was not appointed a ‘term member’ in the Instrument of Appointment by Justice Robertson Wright on the 11 December 2013.
2. was not a ‘term member’ between 11 December 2013 to 23 November 2014.
IIIPursuant to Schedule 5 Clause 12 of the Civil and Administrative Tribunal Act 2013 (NSW), I, respectfully, make the following submissions:
i.The Instrument of Appointment, dated 11 December 2013, as invalid as the President Justice Robertson Wright had intended to appoint Acting District Court Judge Frank Marks to the ‘Health Practitioner List’ under the National Law. It is invalid on the ground that the NSW Court of Appeal in Quach v HCCC [2016] NSWCA 10 at [24] had made the finding that Acting District Court Judge Frank Marks was not appointed a ‘term member’.
ii.Acting District Court Judge Frank Marks did not have a valid appointment on 10 September 2014. The NSW Court of Appeal made the finding that Acting District Court Judge Frank Marks was not a ‘term member’ until 24 November 2014.
Dr Quach then helpfully set out what he asserted were the questions involved and the reasons for leave as follows:
5.The Questions involved are:
i.Does ‘irrelevance’ in another jurisdiction mean ‘irrelevance’ in the jurisdiction of the Domestic Violence and Personal Protection Order Act 2008 (ACT)
ii.Does Section 69 of the Domestic Violence and Personal Protection Order Regulation 2009 (ACT) have any application in this appeal matter.
iii.Is there a conflict of interest for the NSW Crown Solicitors and Mr James Maher to legally represent both Ms Brianna Mary Butt and NSW Treasury at the same time.
iv.Is a solicitor/barrister ‘condition cost agreement’ valid in a criminal proceeding?
v.Does interpreting ‘a party’ to be a party without sufficient interest, pursuant to S6609 of the Court [Procedures] Rules 2006 (ACT), defeat the purpose of the legislation.
6. Leave should be given because:
i.What is ‘irrelevant’ in one jurisdiction cannot be taken to mean ‘irrelevant’ in the Domestic Violence and Personal Protection Order[s] Act 2008 (ACT), pursuant to the High Court ruling in Yager v The Queen [1977] HCA 10, Mason J ruled that there was ‘no legitimate foundation’ for resorting to the definitions contained in one Act for the purpose of modifying or qualifying another statutory definition contained in a different Act of Parliament.
ii.Pursuant to Associate Justice Mossop’s ruling, s69 of the Domestic Violence and Personal Protection Orders Regulation 2009 (ACT) does not have any application in this appeal.
iii.There is a conflict of interest for the NSW Crown Solicitors and Mr James Maher to be representing both Ms Brianna Mary Butt and NSW Treasury at the same time.
iv.A solicitor/barrister ‘conditional cost agreement’ is invalid for criminal proceedings.
v.The statutory interpretation of ‘a party or a person having sufficient interest ...’ in s6609 of the Court [Procedures] Rules 2006 (ACT) in the ordinary meaning would mean ‘a party or a person having a sufficient interest’ to object to the inspection of the documents produced by Westpac Banking Corporation. Therefore, s6609 of the Court [Procedures] Rules 2006 (ACT) has no application.
Consideration
As often happens in litigation conducted in person by the litigant without the assistance of lawyers, the issues were diffused and often irrelevant. That does not relieve the Court from being astute to see that an ill-formed or apparently irrelevant point may not mask a right to which the litigant is entitled to seek to have vindicated: Maher v Carpenter [2012] ACTSC 38; 7 ACTLR 216 at 224-5; [41]. Nevertheless, the Court must not become the unrepresented litigant’s advocate nor sift through apparent irrelevancies to the disadvantage of the other party or parties and, indeed, to other litigants, whose cases demand attention which is otherwise directed towards the time and energy needed to identify possibly legitimate claims of the unrepresented litigant. The Court must do the best it can to deliver justice and this is what I did.
I easily disposed of a number of the issues asserted by Dr Quach and these are my reasons for doing so.
1. Position of Marks ADCJ
I have carefully read Quach v HCCC (No 3) and do not accept that the Court of Appeal made the finding alleged by Dr Quach. Even if it did, that may have been resolved by application of the de facto officer doctrine as referred to in that decision at [31].
This, in any event, related solely to the hearing of two interlocutory applications to strike out the complaints referred by the Health Care Complaints Commission to the Tribunal which heard them on 10 September 2014, at which time any impediment to Marks ADCJ hearing the matter was in existence.
I note that no appeal was taken from the decisions made on that day and that, by the time of the substantive hearing of the complaints, any such impediment to the participation of Marks ADCJ no longer existed.
Whatever problem any impediment to Marks ADCJ being a member of the Tribunal hearing and determining the proceedings on 10 September 2014 cannot have affected the substantive hearing. Indeed, that the complaints were upheld at that hearing strongly suggested that the interlocutory applications would have been dismissed in any event.
Thus, the orders made by the Tribunal were not, on this account, infected by error and could not, on that account, be set aside.
Insofar then, as this error may be relied on to show that the order for costs which costs Ms Butt, on behalf of the Health Care Complaints Commission, was seeking to recover was beyond power, wrong or otherwise improperly made as to be unenforceable, I can see no basis for such reliance.
Further, it is entirely obscure to me, and Dr Quach did not explain in any way, how this issue was relevant to whether any conduct by Ms Butt or the NSW Treasury were engaged in harassing or offensive conduct such as to justify the making of a protection order. None of the documents the subject of the subpoenas seemed to me to address this issue in any way.
Perhaps, more importantly, none of the material sought to be produced under any of the subpoenas was relevant to the status of Marks ADCJ as a member of the Tribunal. There was no legitimate forensic purpose for any of the subpoenas that was justified by this ground.
2. Ms Butt’s standing to challenge the subpoenas
Dr Quach referred to r 6609 of the Court Procedures Rules to suggest that Ms Butt had no standing to apply for the subpoenas to be set aside.
That is, unfortunately, not the relevant rule. That rule relates to the inspection of documents once produced under the subpoena. This has no application to any issue before me.
The relevant rule is r 6604 of the Court Procedures Rules. I do not know whether Dr Quach made a typographical error and intended to refer to this rule. The rule is as follows:
6604 Setting aside subpoena or other relief
(1) On the application of a party or someone else having a sufficient interest, the court may set aside a subpoena completely or partly, or grant other relief in relation to it.
Note Pt 6.2 (Applications in proceedings) applies to an application under this rule.
(2) A copy of the application must be served on the issuing party.
(3) The court may order that the applicant give notice of the application to any other party or anyone else who has a sufficient interest.
Whether Ms Butt would have qualified as “someone else having a sufficient interest” is an interesting question, but entirely irrelevant. She is undoubtedly a party and so has an interest recognised by the rule.
In his submissions, Dr Quach raised the question, “Does interpreting ‘a party’ without sufficient interest ... defeat the purpose of the legislation?”. I assume that this unrepresented litigant was suggesting by the question that it would. The short answer, however, is that it does not. A party has, by virtue of that status, a sufficient interest in any evidence adduced or to be adduced in proceedings so as to ensure that the proceedings are not distorted, diverted or otherwise hampered because of the subpoena.
A party has a right, as part of their participation in the proceedings, to apply for a subpoena to be set aside, and this upholds and is quite consistent with the Court Procedures Rules. Thus, Ms Butt had standing to apply for the subpoenas to be set aside.
3. Irrelevance
The reference to “irrelevance” referred to by Dr Quach noted above (at [47]), in the Questions involved (Q5.i) and the reasons for the grant of leave (Q6.i) are difficult to understand.
The word “irrelevance” does not appear in the Domestic Violence and Protection Orders Act. There are references to “relevant” but mostly in relation to domestic violence orders which Dr Quach is neither seeking nor entitled to obtain.
Dr Quach’s reference to Yager v The Queen (1977) 139 CLR 28 was also curious. That decision does not deal with anything that might impinge on these proceedings.
Dr Quach referred to a comment of Mason J at 43 in that decision, a case related to the meaning of “cannabis” and “cannabis plant” in the Customs Act 1901 (Cth). The applicant there sought special leave to appeal from a conviction for importing cannabis into Australia and relied, amongst other things, on expert evidence that what was imported was not prohibited because of the problems in the definition of “cannabis plant” as “a plant of the genus cannabis sativa” when that was a reference to a species and not to a genus. The applicant relied on definitions in the Narcotic Drugs Act 1967 (Cth). Mason J commented on this submission:
The existence of different definitions of the same subject matter in statutes of the one Parliament is by no means uncommon. A statutory definition exists for the purposes of the particular statute in which it is contained, unless it appears in a statute expressed to have a more general application, such as the Acts Interpretation Act. Indeed, the opening words of s 4 of the Narcotic Drugs Act, ‘In this Act, unless the contrary intention appears’, explicitly confine the operation of the definitions there contained to the operative provisions of the Act itself. There is, therefore, no legitimate foundation for resorting to the definitions contained in the Narcotic Drugs Act for the purpose of modifying or qualifying another statutory definition contained in a different Act of Parliament. There is perhaps even stronger reason for reaching this conclusion when one statute is domestic in character and the other is a statute which gives effect to an international convention and is consequently bound to apply the definitions which the convention contains.
There is, however, nothing in the proceedings before me to which his Honour’s comment would apply or which it illuminates. There is no other Act to which it is needed to refer to construe the Domestic Violence and Protection Orders Act. Certainly, Dr Quach has referred to none in either his affidavit or in his oral submissions.
I note, interestingly, that in Quach v New South Wales Health Care Complaints Commission (No 4) [2016] NSWCA 285 at [30]-[31], Dr Quach also referred to Yager v The Queen but in the context of “vexatious and abuse of process”. The Court commented at [31]: “Dr Quach did not identify any passage in that case which could be conceivably relevant to the 26 July motion”. It seems to me that this perfectly describes this reference to Yager v The Queen by Dr Quach in these proceedings. In any event, Dr Quach could not show how any of the material sought to be produced under any of the subpoenas had any legitimate forensic purpose so far as this issue was concerned.
Further, none of the documents the subject of any of the subpoenas was material to this issue, so far as I could understand it. Dr Quach could not show how any of that material, sought to be produced under any of the subpoenas, had any legitimate forensic purpose so far as this issue was concerned.
4. Conflict of Interest
Dr Quach next referred in the Questions involved (Q5.iii) and the reasons for a grant of leave (Q6.iii) to a conflict of interest with Mr Maher representing Ms Butt and the NSW Treasury. He did not, however, identify the interests that might conflict as a result.
It is not for the Court to speculate on what conflict there could conceivably be.
In the absence of any reasonable suggestion, this challenge is without substance. It seems irrelevant to the appeal to which the NSW Treasury is not a party. In any event, none of the documents the subject of the subpoenas were related to this issue.
Further, Dr Quach could not show how any of the material sought to be produced under any of the subpoenas had any legitimate forensic purpose so far as this issue was concerned.
5. Domestic Violence and Protection Orders Regulation 2009 (ACT)
Dr Quach submits that reg 69 of the Domestic Violence and Protection Orders Regulation 2009 (ACT) has no application to the appeal. That regulation is as follows:
69 Summary stay or dismissal
(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 –
(a) no reasonable cause of action is disclosed; or
(b) the proceeding is –
(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).
This is the section under which Magistrate Morrison acted when he summarily dismissed Dr Quach’s application for a protection order.
Dr Quach’s reference to it is misconceived. He referred to the decision of Mossop AsJ in Quach v Butt [2016] ACTSC 153 which, he submitted, meant that reg 69 of the Domestic Violence and Protection Orders Regulation has no application. In fact, his Honour concluded at [22]-[23] precisely the opposite. Indeed, his Honour held that the application of Ms Butt to have the appeal dismissed as incompetent should itself be dismissed because Magistrate Morrison did actually dismiss Dr Quach’s application for a protection order under reg 69; had he not done so, it was likely, in consequence of the Court of Appeal decision in GJ v AS (No 3) [2015] ACTCA 31, that Dr Quach’s appeal would have been incompetent.
None of the documents the subject of the subpoenas was material to this issue so far as I could understand it.
In any event, Dr Quach could not show how any of the material sought to be produced under any of the subpoenas had any legitimate forensic purpose as far as this issue was concerned.
6. “Condition [sic] Cost Agreement”
Dr Quach’s reference to “condition [sic] costs agreement” in the questions involved (Q5.iv) and the reasons for a grant of leave (Q6.iv) was entirely obscure. There did not seem to be any reference to it in any of the other material before me. I also had, as is the practice in this jurisdiction, the Supreme Court file and I could find no reference in it to such an agreement, though I certainly have not “scoured” the file.
There is, in the practice of law, what is known as a contingency fee agreement, which in certain circumstances is permitted under Australian law. See Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 203. These are sometimes called “no win no fee” arrangements and, for obvious reasons, often used in claims for damages for personal injuries: Re Robb (1996) 134 FLR 294 at 299, 314-5.
There is, so far as I am aware, no prohibition on contingency fee agreements in criminal cases, contrary to Dr Quach’s assertion. There is, of course, the practical matter that in almost every case, the prosecution of a crime will not result in money being paid to an acquitted accused from which the lawyer can be paid. It is possible to conceive of such cases, such as where an otherwise impecunious defendant will recover from the police funds which have been seized when the charges are laid or as a result of them being laid.
Not only would such a case be rare but the ubiquitous availability of Legal Aid, though still with some serious limits, makes the likelihood of contingency fee agreements in criminal proceedings unlikely, but not improper or illegal in themselves.
In any event, none of the proceedings involving Dr Quach are criminal proceedings. That is clear from what was said by Mason J in Weaver v Law Society of New South Wales (1979) 142 CLR 201 at 207. His Honour described disciplinary proceedings of this kind as sui generis, but in general terms they may be described as civil rather than criminal proceedings: BRJ v Council of New South Wales Bar Association (No 2) [2016] NSWSC 228 at [6]; Levi v Australian Securities Investments Commission (No 2) [2013] NSWSC 932 at [8]; Fernando v Medical Complaints Tribunal [2004] TASSC 130 at [59], [66]. Thus, although there are differences and significant differences between disciplinary proceedings and other civil proceedings, there is no doubt that they are not criminal proceedings and the civil standard of proof, not the criminal standard applies, though in an appropriate case, moderated by principles such as those explained in Briginshaw v Briginshaw (1938) 60 CLR 336.
In any event, Dr Quach could not show how any of the material sought to be produced under any of the subpoenas had any legitimate forensic purpose so far as this issue was concerned.
These conclude the matters raised in Dr Quach’s affidavit under the heading of Questions involved and reasons for the grant of leave. At the hearing, however, he raised some other matters, including some references in his affidavit noted above (at [45]), that, perhaps, appear to be more relevant to the issue of the subpoenas. I shall deal with them as follows.
7. Power of Health Care Complaints Commission to receive costs
Dr Quach suggested that the Health Care Complaints Commission had no power to ask for or receive costs. His submission was that the decision to order costs against him was a nullity because “there was no application [sic] for costs orders in the Health Care Complaints Commission [sic] Act”.
It could well be relevant to Dr Quach’s appeal were Ms Butt making demands for payment of money that was not payable.
This does not seem to be the situation however. Costs orders were made in both the Tribunal and in the Court of Appeal (Quach v New South Wales Civil and Administrative Tribunal).
Dr Quach submitted that, in any event, there was no power to make a costs order as he referred to Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184. In that decision, Kirby J said at 200; [41]:
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.
It appears that Dr Quach is content to read the first sentence but not to read or understand the rest of the paragraph. Of course, what his Honour says is, with respect, quite correct; it has long been understood that there was no common law power to award costs: Garnett v Bradley (1878) 3 App Cas 944 at 962. It has, however, also been long known that costs are a creature of statute, which can authorise a court to award them: Re Birkman; Ex parte Pickering (1860) 1 QSCR 14 at 15.
It is, then, to statute that the Court must turn and, in this case, there are clear, relevant, effective statutory provisions.
Under s 90B of the Health Care Complaints Act 1993 (NSW), the Health Care Complaints Commission has functions, exercisable only by the Director of Proceedings, inter alia, to prosecute a complaint before a disciplinary body.
In doing so, the Health Care Complaints Commission, whose power the Director of Proceedings is exercising, becomes a party to the proceedings before the disciplinary body. As a party, it is subject to the requirements and entitled to the privileges of being such a party. Thus, it is able to be awarded costs, which is a power that is able to be exercised in favour of a party. The power under s 90B of the Health Care Complaints Act gives it that status of being a party and to being entitled to a costs order in its favour and thus to receive any costs so ordered.
That the Tribunal has power to make a costs order in favour of a party is clear from s 60 of the Civil and Administrative Tribunal Act 2013 (NSW). It is true that there are constraints on that power but there is power to award costs in favour of a party where the circumstances require it.
It is also the case that the Court of Appeal has power to make an order for costs in favour of a party and against another party. See s 98 of the Civil Procedure Act 2005 (NSW).
I have to note that it is rather tedious and unhelpful of Dr Quach to have pressed this argument. It has been resolved by Quach v HCCC (No 3) at [58] and, despite that, Dr Quach seems to blithely ignore findings that are made against him and repeat arguments that have been rejected.
In those circumstances, he is likely to find that awards of indemnity costs may well be made against him for conducting hopeless cases.
It is conceivable that the documents sought from Ms Butt being “Item iv” in the Schedule to the subpoena addressed to her as set out above (at [34]) may be tangentially relevant to the collection of costs, but that was not Dr Quach’s point; he submitted that the Health Care Complaints Commission had no power to receive and therefore collect a costs order in its favour, which, he submitted, was beyond the power of the Tribunal or the Court of Appeal. None of the documents in any of the subpoenas, including that addressed to Ms Butt, was relevant to the issue argued by Dr Quach.
There is no substance in this ground on which Dr Quach may wish to base his allegation that he is subject to harassment. In any event, he could not show any basis on which any of the material sought to be produced under any of the subpoenas had any legitimate forensic purpose for the prosecution of his appeal.
8. The undertaking
After the Tribunal had found proved the complaint against him and that, Dr Quach’s conduct constituted both unsatisfactory professional conduct and professional misconduct, he sought review of the NSW Court of Appeal as I have noted above (at [17]). Those proceedings were numbered 2105/48269 and 2015/67618 in the Court of Appeal.
When his applications were dismissed, Dr Quach sought leave to appeal from that decision to the High Court, which, of course, required an application for special leave (s 35 of the Judiciary Act 1903 (Cth)). As also noted above (at [17]), that application for special leave was refused; it was refused on 13 August 2015.
In the meantime, the Tribunal had delivered its decision to cancel Dr Quach’s registration and make other orders as I have also noted above (at [18]). Again, Dr Quach sought judicial review in the NSW Court of Appeal. During these proceedings, the Health Care Complaints Commission gave an undertaking to the NSW Court of Appeal in the following terms:
29/6/2015
Undertaking given in Proceedings
2015/48269 and 2015/67168
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 2015/67619 (“the Court of Appeal proceedings”); and
2.the NCAT on 21 April 2015;
prior to the High Court determining the applications for special leave in respect of the Court of Appeal proceedings.
I could find in the cases no reference to 2015/67619 involving Dr Quach. I suspect that may be a typographical error for 2016/67618.
It is clear that this undertaking was a limited one as to the time of its effect; that is, it no longer bound the Health Care Complaints Commission once the High Court had disposed of any extant applications for special leave to appeal. That happened, as stated above at [102], on 13 August 2015.
Dr Quach was unhappy with that decision, but it did determine the application for special leave and so brought the restraint in the undertaking to an end.
There is some suggestion in David O’Brien, Special Leave to Appeal (Supreme Court of Queensland Library, 2nd ed, 2007) at 48, that a refusal of special leave to appeal is an interlocutory decision and may not prevent renewal of an application. I am not convinced that the authority cited, Sanofi v Parke Davis Pty Ltd (1982) 149 CLR 147; 56 ALJR 259, does actually decide that. However, Kirby J in Re Sinanovic’s Application [2001] HCA 40; 180 ALR 448 at 450; [7], explained:
1. A decision on a special leave application is not res judicata as between the parties, equivalent to a judgment that finally decides a legal dispute between them. The application is in the nature of an interlocutory proceeding by which a party seeks to engage the jurisdiction of this Court As a general rule, interlocutory orders may be varied or set aside in appropriate circumstances where the interests of justice so require.
(footnotes omitted)
Dr Quach has not, so far as I am aware, sought to vary or set aside the refusal of special leave. The application has been determined. Even if he did apply for a variation or for the dismissal of the decision to refuse special leave to appeal, I am not convinced that this would revive the restraints contained in the undertaking.
Thus, the effect of the restraint on the Health Care Complaints Commission under the undertaking seems to me to be at an end and came to an end on 13 August 2015 when his application for special leave was dismissed. Ms Butt wrote to him after that date. Thus, there is no substance in this complaint. None of the material the subject of the subpoenas seemed to address this issue.
In any event, Dr Quach could not show any basis on which any of the material sought to be produced under any of the subpoenas has any legitimate forensic purpose for the prosecution of his appeal.
9. The challenge to Ms Butt
The most significant of the allegations made by Dr Quach related to Ms Butt, who had the responsibility from October 2013 of the conduct of the complaints filed by the Health Care Complaints Commission, her employer, in May 2013 with the then disciplinary body, the NSW Medical Tribunal.
Thus, despite Dr Quach’s constant assertion that she had pursued him, she was not responsible for the initiation of the original proceedings and was only required by her employer to conduct them on its behalf after they had been investigated and the Tribunal proceedings commenced.
Dr Quach made serious and highly disparaging allegations about Ms Butt. It is not appropriate to repeat them here, especially as the evidence for them on which Dr Quach relied did not justify his views.
Indeed, it was unclear whether Dr Quach was wilfully ignoring facts, prior court decisions, and the reasonable interpretation of events, or was incapable of rationally assessing facts, decisions, and events. He gave every sign of seeing matters involving these proceedings through a distorted prism of preconceived guilt, corruption and malice in others with whom he has dealt. It was difficult, if not impossible, to accept his views in the light of the evidence on which he sought to rely or to justify them. So far as the subpoena addressed to Ms Butt was concerned, he raised a number of issues that, were they relevant, could have been sufficient to justify some of the material he sought to be produced under the subpoena.
The first matter was that Ms Butt described herself in her affidavit 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.
She stated that she was admitted by the Supreme Court of New South Wales on 26 August 2005.
Under s 31 of the Legal Profession Act 2004 (NSW), in force at the time she was admitted persons were admitted as Australian lawyers by the Supreme Court. They were then able to practise as solicitors or barristers, but only after obtaining a practising certificate. This provision, under which it appears Ms Butt was admitted, has now been repealed, but that does not affect its application of the provision for this purpose.
Thus, it seems to me that, once admitted as an Australian lawyer, it is not misleading to describe oneself as a solicitor and barrister, so long as one does not practise as such without the relevant practising certificate.
In any event, to determine this issue, it would be necessary to seek records from the relevant admission authorities. None of the documents sought from Ms Butt would give direct evidence of this issue.
The only basis on which Dr Quach sought the material listed in the subpoena was to suggest that Ms Butt was not a barrister. Even were that, in the circumstances, a legitimate forensic purpose, nothing that he sought from Ms Butt in the subpoena would have addressed this issue.
Then, Dr Quach submitted that Ms Butt was charging him personally for the costs recoverable under the various orders. There were a number of problems with this.
In the first place, Dr Quach relied on an itemised bill of costs that had been submitted to him by Ms Butt with the request for payment of the costs ordered to be paid as itemised.
The itemised bill of costs was prepared in accordance with the relevant statutory provision, namely reg 111B of the Legal Profession Regulation 2005 (NSW), which provided:
111B Contents of itemised bill
(1) The following particulars are to be included in an itemised bill given by a law practice (other than by a barrister):
(a) short details of each item of work carried out on behalf of the client, including the method by which it was carried out (whether by letter, telephone, perusal, drafting, conference, teleconference or otherwise) if not otherwise apparent,
(b) the date on which each item of work was carried out,
(c) except so far as paragraph (d) applies-the amount charged for carrying out each item of work, and particulars:
(i) of the time (in minutes or other units of time) engaged for carrying out each item or work, and
(ii) identifying the person who carried out each item of work,
(d) if applicable, the amount charged for carrying out each item of work on some other basis on which work has agreed to be charged, and particulars of that agreed basis.
As can be seen, contrary to the assertion of Dr Quach, Ms Butt’s name appeared on the itemised list because she carried out much of the work (Reg 111B(1)(c)(ii) of the Legal Profession Regulation) not because she was personally charging for the work. Obviously, some references were to Ms Butt as the “Process Officer”, presumably the officer who processed the disbursement to which the relevant item on the bill referred.
The person entitled to be paid the costs, namely the Health Care Complaints Commission, could claim costs for each lawyer who carried out work for it, as Ms Butt clearly did. It was the Commission who has claimed the costs, not Ms Butt herself. Indeed, that is what Ms Butt’s letter said, that the costs should be paid to the Health Care Complaints Commission.
Currently in New South Wales, the assessment of costs is not by reference to a scale, which is used in other jurisdictions, such as the ACT (as to which, see Sch 4 of the Court Procedures Rules) but by requiring the costs to be “fair and reasonable amount of costs for the work concerned”: s 76 of the Legal Profession Uniform Law Application Act 2014 (NSW). In considering that amount, the claimant for costs will have regard to the criteria set out in s 172 of the Legal Profession Uniform Law (NSW), as follows:
172 Legal costs must be fair and reasonable
(1) A law practice must, in charging legal costs, charge costs that are no more than fair and reasonable in all the circumstances and that in particular are-
(a) proportionately and reasonably incurred; and
(b) proportionate and reasonable in amount.
(2) In considering whether legal costs satisfy subsection (1), regard must be had to whether the legal costs reasonably reflect-
(a) the level of skill, experience, specialisation and seniority of the lawyers concerned; and
(b) the level of complexity, novelty or difficulty of the issues involved, and the extent to which the matter involved a matter of public interest; and
(c) the labour and responsibility involved; and
(d) the circumstances in acting on the matter, including (for example) any or all of the following-
(i) the urgency of the matter;
(ii) the time spent on the matter;
(iii) the time when business was transacted in the matter;
(iv) the place where business was transacted in the matter;
(v) the number and importance of any documents involved; and
(e) the quality of the work done; and
(f) the retainer and the instructions (express or implied) given in the matter.
Any disagreement as to the claimed costs is resolved by reference to a costs assessor. The process of helpfully explained in Alyson Ashe, Legal Costs New South Wales (LexisNexis Butterworths, 1994) looseleaf vi, pp 3835-84; [8140]-[8260]. It is not necessary to explore this further.
It is also clear law that, a corporation, such as a statutory corporation like the Health Care Complaints Commission, may recover costs of work undertaken by employed lawyers: Environment Protection Authority v Taylor Woodrow (Australia) Pty Ltd (No 2) (1997) 97 LGERA 368 at 385-6. In Commonwealth Bank of Australia v Hattersley [2001] NSWSC 60; 5 NSWLR 333 at 339-40; [17]-[26], it was held that the costs payable are not simply the amount of salary (such as calculated at an hourly rate) of the person carrying out the work but reasonable costs as defined by the usual costs payable to an independent lawyer. See also R v Barbaro (1992) 108 ACTR 1 at 7.
It is understandable, but regrettable, that Dr Quach has so little understanding of the law relating to the recovery of costs. He has, however, chosen to appear on his own behalf and conduct the litigation himself as he told me. It is clearly his responsibility to inform himself of the facts and the relevant law and not to apply a pre-conceived and distorted view of the circumstances that has led him into making unsubstantiated allegations that clearly proceed from his ignorance and feelings of being harassed, rather than from the dispassionate and objective evaluation that legal representation would provide.
Dr Quach was convinced that Ms Butt was making a profit from charging him for costs. There is not a skerrick of evidence to support that assertion and, to that extent, his subpoena to her constituted a fishing expedition as earlier described (at [44]) and justifies in itself the setting aside of the subpoena.
Dr Quach’s complaint was that Ms Butt was harassing him. That is properly a basis for the grant of a protection order if the evidence proves on the balance of probabilities that this is so.
Even had any of the allegations made by Dr Quach any substance, the motive for any harassment will rarely be relevant. I accept, however, that were the claim for costs made by the Health Care Complaints Commission baseless, that would assist in the determination that demands for payment amounted to harassment. None of the material the subject of the subpoenas were, however, material to this issue.
In this case, Dr Quach has been entirely unable to identify any basis for his clearly held view that the costs ordered to be paid are not payable. In the absence of such a basis, there is no legitimate forensic purpose for the production of any of the material sought to be produced under any of the subpoenas and, in particular, that addressed to Ms Butt.
10. Fraud on the Commonwealth
It almost does not bear mentioning that Dr Quach submitted that a comparison between the costs sought from him and the costs recovered as reported in the Health Care Complaints Commission Annual Report somehow showed that there was a fraud on the Commonwealth.
The proposition made has to be stated to show its absurdity. That in 2015, $625 000 was recovered in costs and the Health Care Complaints Commission was seeking to recover $132 292.75 from him tells little if anything.
To mention just two obvious reasons for the relevant amounts. In the first place, the prima facie position in the Tribunal is that each party bears its own costs. Thus, not every case brought by the Health Care Complaints Commission will result in an award for costs.
Secondly, Dr Quach is, as his application before me shows, an avid and not very focussed litigant. He raises irrelevant and unsustainable issues amongst the points that he makes, some of which may have substance. He is also a passionate litigant; in addition to the hearings in the Tribunal, he has, since 2015, had five hearings before the NSW Court of Appeal constituted by three judges, three hearings before the NSW Court of Appeal constituted by a single judge, two hearings in the Common Law Division of the Supreme Court of New South Wales, and one hearing in the High Court. Further, he has had one hearing in the Supreme Court of the ACT and this hearing in the ACT Court of Appeal. The costs he has caused to the Health Care Complaints Commission are likely to be larger than that for other litigants.
In any event, whatever the situation in this regard, it can have no bearing whatsoever on the questions of whether Dr Quach had a fair hearing in the Magistrates Court and whether he was entitled to have a protection order made. None of the material the subject of the subpoenas was relevant to this issue.
Thus, there was no legitimate forensic purpose for the production of any of the material sought to be produced under any of the subpoenas.
Disposition
Dr Quach could not show a legitimate forensic purpose on this appeal for any of the material that was to be produced under the four subpoenas. It was for this reason that I dismissed the application for leave to appeal.
The Health Care Complaints Commission sought its costs. Dr Quach opposed such an order.
He initially relied on the comment of Kirby J, to which I have earlier referred (at [90]), that there is no power to order costs. In this case, there is clear legislative authority.
Section 7 of the Court Procedures Act 2004 (ACT) permits the Rule-Making Committee established under s 9 of that Act to make rules with respect to matters of practice and procedure of ACT Courts and matters set out in Sch 1 Item 26 of Pt 1.2 of Sch 1 refers to:
Costs
26 Costs, including, for example, the following:
(a) security for costs;
(b) entitlement to recover costs;
(c) costs of parties in proceedings;
(d) assessment of costs.
Part 2.17 of the Court Procedures Rules made and from time-to-time amended by the Rule-Making Committee, are the rules relating to costs made under this power and include especially r 1721 as follows:
1721 Costs – general rule
(1) The costs of a proceeding or of an application in a proceeding are in the discretion of the court.
(2) The costs of the proceeding include the costs of an application in the proceeding, unless the court otherwise orders.
Note 1 Application in a proceeding is defined in r 6006.
Note 2 Pt 6.2 (Applications in proceedings) applies to an application for an order otherwise ordering.
The provision for appeal, however, are slightly different, as r 5001 of the Court Procedures Rules shows:
5001 Appellate proceedings – application of ch 2 generally
(1) Except as provided by this rule or another rule in this chapter, chapter 2 (Civil proceedings generally) does not apply to an appellate proceeding.
(2) The applied civil rules apply, with any necessary changes, to an appellate proceeding that is a civil proceeding.
(3) In this rule:
applied civil rules means the following:
...
part 2.17 (Costs)
...
As the rules in Pt 2.17 of the Court Procedures Rules are applied rules, r 1721 applies to these proceedings.
These were proceedings that arose out of the application Dr Quach made under the Domestic Violence and Protection Orders Act where reg 93 of the Domestic Violence and Protection Orders Regulation, made under s 118(2)(n) of the Act, provides that no costs are payable on a proceeding under an application but the Magistrates Court has power to make such orders.
This Court is not bound by that Regulation. It has powers to make orders for costs: GJ v AS (No 3) at [49]-[51]. I made an order for costs.
These are the reasons for the orders I made.
| I certify that the preceding one hundred and forty-nine [149] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 15 February 2017 |
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