Quach v RU - [2017] ACTCA 63

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Quach v RU
Citation:	[2017] ACTCA 63
Hearing Date:	18 October 2017
DecisionDate:	18 October 2017
Before:	Murrell CJ
Decision:	Leave to appeal an interlocutory decision and leave to appeal out of time are refused.
Catchwords:	APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Whether leave to appeal for an interlocutory order should be granted – Whether leave to appeal out of time against final orders should be granted – Whether judge was eligible for judicial appointment
Legislation Cited:	Legal Profession Act 2006 (ACT) Legislation Act 2001 (ACT) pt 1 Supreme Court Act1933 (ACT) s 4
Parties:	Michael Van Thanh Quach (Appellant) RU (Respondent)
Representation:	Counsel Self-represented (Appellant) No appearance (Respondent)
Solicitors Self-represented (Appellant) NSW Crown Solicitor (Respondent)
File Number:	ACTCA 45 of 2017
Decision under appeal:	Court/Tribunal: ACTSC Before: Penfold J Date of Decision: 14 March 2017 Case Title: Quach v RU Court File Number: SCA 36 of 2016

MURRELL CJ:

The applicant applied for leave to appeal from an interlocutory judgment of Penfold J given on 14 March 2017. He also sought to appeal all her Honour’s decisions, including final decisions; that is apparent from the notice of appeal which raises the issue of whether her Honour was qualified to sit as a judge of the ACT Supreme Court on any of the matters.

The applicant contended that her Honour was not so qualified because she was not eligible to be appointed as a resident judge of the Court as she had not “been a legal practitioner for not less than 5 years” (see s 4 of the Supreme Court Act1933 (ACT)).

Two principal issues arise. First, whether there is an adequate explanation for any delay in appealing and/or seeking leave to appeal. Second, whether and to what extent there may be merit to any appeal; this issue may inform whether or not leave is granted.

I briefly note the history. This may not be a complete history.

As far as I understand it, in the Magistrates Court, the applicant made an application for a protection order. The application was refused. The applicant appealed. The respondent in the Magistrates Court applied to strike out the appeal as incompetent but the Court did not strike it out.

Before the appeal was heard, the applicant served a subpoena on the NSW Health Care Complaints Commission (HCCC), which did not respond. The applicant filed an application alleging that the failure to respond was a contempt. The matters came before Penfold J on a number of occasions, including on 14 March 2017, when her Honour made directions, and on 21 August 2017, when her Honour dismissed the contempt application and the appeal.

On 14 March 2017, one of the orders that her Honour made was as follows:

[Her Honour] directs the Registrar that, should Mr Quach file, in this proceeding, any further application in proceeding, (other than an application seeking a review of or an appeal from any…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Quach v RU

Details

AGLC: Quach v RU [2017] ACTCA 63
Case: [2017] ACTCA 63
Decision Date: 18 October 2017

CaseChat Overview and Summary

The applicant, Quach, sought leave to appeal an interlocutory decision and leave to appeal out of time against final orders made by a judge of the Supreme Court of New South Wales. The respondent was RU.

The primary legal issues before the Chief Justice were whether to grant leave to appeal the interlocutory order and whether to grant leave to appeal out of time against the final orders. A further, albeit secondary, issue raised by the applicant concerned the eligibility of the judge for judicial appointment.

The Chief Justice considered the principles governing the grant of leave to appeal in both interlocutory and final matters, including the need to demonstrate a reasonably arguable case of error and that the appeal would have a real prospect of success. The Chief Justice also considered the principles applicable to granting leave to appeal out of time, which typically require a satisfactory explanation for the delay and a demonstration that the appeal has merit. The Chief Justice found that the applicant had not satisfied the threshold requirements for granting leave in either instance.

Consequently, leave to appeal the interlocutory decision and leave to appeal out of time against the final orders were refused.

Orders

Orders of the court

Leave to appeal an interlocutory decision and leave to appeal out of time are refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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