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:

1. 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. 

1. 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)).

1. 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. 

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

1. 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. 

1. 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.

1. 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 of the orders made today), the Registrar is:

a.     to refuse to set a return date for that application;

b.     to notify the parties accordingly; and

c.     to refer the papers to a Judge nominated by the Registrar to determine in chambers:

i.    whether the court should fix a return date for the application and notify the parties of that date; or

ii.   whether Mr Quach should be invited to show cause in writing why the Court should not, in chambers, summarily dismiss the application as vexatious and an abuse of process.

1. This order (‘the 14 March Order’) is the subject of the present application although, as I have mentioned, in the proposed notice of appeal, the applicant contended that all the orders and judgments of Penfold J were a nullity as her Honour was not qualified for appointment as a judge.

1. Today, in oral submission, Mr Quach advanced an additional argument: that he was subjected to actual and/or apprehended bias in relation to the making of the 14 March Order because he was “ambushed” and he was not given the opportunity to be heard.

10.  I turn to the adequacy of any explanation for delay.  In relation to the 14 March Order, the application for leave to appeal from that order was not filed until 5 October 2017, i.e. more than six months after the order was made. It is a very substantive delay considering that applications for leave to appeal from interlocutory orders should be filed within seven days.  No explanation was given for the delay.

1. In relation to the final orders made on 21 August 2017 – some orders were made as late as 14 September 2017, but the substantive orders seem to have been made on 21 August 2017 – the delay to 5 October was not an extensive delay considering that, for substantive orders, the appeal period is 28 days.  The delay itself does not necessarily indicate that leave to appeal out of time should be refused.

12.  However, both in relation to the application for leave to appeal an interlocutory order and in relation to any application for leave to appeal out of time against final orders, the issue of merit must be addressed. 

13.  The argument relating to her Honour’s ineligibility to sit on the Supreme Court and resulting lack of jurisdiction to sit on Mr Quach’s matters is doomed to failure for a number of reasons. 

14.  First, there is the assertion that her Honour was not a legal practitioner because her Honour has never held a practising certificate.  However, when one turns to the definition of legal practitioner in the Legislation Act2001 (ACT), the definition is as follows:

legal practitioner means a person who is admitted to the legal profession under the Legal Profession Act 2006 or a law that is a corresponding law for that Act.

There is nothing in the Legislation Act 2001 (ACT) that requires a legal practitioner to hold a practising certificate. Moreover, there is nothing whatsoever before the Court, not even an assertion, that her Honour was not admitted under the Legal Profession Act 2006 (ACT) or a corresponding law. Consequently, there is nothing to suggest that the argument about her Honour not being qualified for appointment has any merit.

15.  Second, no such argument was put to her Honour or to the Court in any first instance proceedings. Therefore, prima, facie, there is nothing to appeal from. 

16.  Third, judicial appointments are a matter for the Executive and any errors in that regard are to be drawn to the attention of, and presumably dealt with, by the Executive. 

17.  In relation to the argument of actual or apprehended bias and “ambushing”, so far as the 14 March Order is concerned, the argument that the applicant was not afforded an opportunity to be heard in relation to the making of the direction may be true; I have not examined the transcript to determine that. 

18.  However, the direction itself is not a matter that would require any opportunity to be heard, because it is merely a direction as to a procedure which would ultimately afford the applicant the opportunity to be heard.  As noted above, the terms of the 14 March Order were to the effect that, if something adverse was to be done to Mr Quach, Mr Quach could file an application and the matter would be referred to a judge to give Mr Quach an opportunity to show why his application should not be dismissed. The procedure set up by Penfold J by the order afforded the applicant an opportunity to be heard. Consequently, this argument is totally without merit.

19.  The applications for leave to appeal out of time and/or leave to appeal an interlocutory decision are refused.

I certify that the preceding seventeen [19] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.

Associate:

Date: 01/02/2018