Quach v RU
[2019] FCA 2041
•15 November 2019
FEDERAL COURT OF AUSTRALIA
Quach v RU [2019] FCA 2041
Appeal from: Application for leave to appeal from the orders made on 24 September 2019 File number: ACD 66 of 2019 Judge: RARES J Date of judgment: 15 November 2019 Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG, 37AH
Service and Execution of Process Act 1992 (Cth)
Health Care Complaints Act 1994 (NSW) s 75
Cases cited: Bienstein v Bienstein (2003) 195 ALR 225
Oil Basins Limited v Watson (2017) 252 FCR 420
Quach v RU (No 3) [2017] ACTSC 258
Date of hearing: 15 November 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 16 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr J Emmett Solicitor for the Respondent: Crown Solicitor for New South Wales ORDERS
ACD 66 of 2019 BETWEEN: DR MICHAEL VAN THANH QUACH
Applicant
AND: RU
Respondent
JUDGE:
RARES J
DATE OF ORDER:
15 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
This is an application for leave to appeal from an order made by a judge of the Court on 24 September 2019 in the following terms:
3.Under s 37AH of the Federal Court of Australia Act 1976 (Cth) the name of the respondent not be published and henceforth the respondent be referred to by the pseudonym “RU”. The order is made to prevent prejudice to the administration of justice with particular regard to the matters outlined at [13] of Penfold J’s judgment in Quach v RU (No 3) [2017] ACTSC 258.
4.Within 7 days hereof, the respective parties are to amend all their filed documents so as to comply with Order 3.
The order has a typographical error because the power is found in ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth), which provide relevantly:
37AF Power to make orders
(1)The Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
(a)information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court;
[…]
37AG Grounds for making an order
(1)The Court may make a suppression order or non-publication order on one or more of the following grounds:
(a)the order is necessary to prevent prejudice to the proper administration of justice;
[…]
(2)A suppression order or non-publication order must specify the ground or grounds on which the order is made.
The proposed grounds of appeal are as follows:
1.On the question of law, in a matter that is made in the Australian Capital Territory Quach v RU, the Federal Court is asked if the Court makes findings in the Health Care Complaints Act 1993 (NSW) to accept and validate applications and submissions, by way of instructions to the New South Wales Crown Solicitor from the New South Wales Health Care Complaints Commission, in this proceeding.
2.If the answer is ‘No,’ the Federal Court is invited [to] make the finding that the New South Wales Health Care Complaints Commission does not have valid statutory authority (Gedeon v NSW Crimes Commission [2008]) to make an application for a suppression order in this proceeding. The Order sought is to set aside the Orders (3) and (4) of Griffiths J of 24 September 2019.
Mr Quach argued the application himself today. He contended that the solicitor acting for the respondent, RU, had no power, or authority, to appear in this proceeding on her behalf. He told me that, a solicitor in the employ of the New South Wales Crown Solicitor (RU’s solicitor on the record), announced his appearance for RU and the New South Wales Health Care Complaints Commission at the case management hearing on 24 September 2019 before the primary judge.
Mr Quach asserted that the Commission was precluded from being involved in this proceeding to instruct lawyers to appear in it or to provide assistance, through the Crown Solicitor, to RU or any person, including an employee of the Commission, by force of s 75 of the Health Care Complaints Act 1993 (NSW). I note that s 75 substantively deemed that the functions of the Commission were exercisable by the Commissioner and that any act, matter or thing done, in the name of, or on behalf of, the Commission by the Commissioner, or with the Commissioner’s authority, was taken to have been done by the Commission.
Mr Quach contended that s 75, in some way, created a jurisdictional fact that the Commission or this Court needed to establish in order to be able to have any involvement in the proceeding. Mr Quach contended that the primary judge could not have made order 3 (the pseudonym order) on an application by a lawyer employed, or instructed, by the Crown Solicitor on RU’s behalf. I could not understand what Mr Quach’s argument was on this point.
Consideration
I reject Mr Quach’s argument to the extent that it was comprehensible. His Honour had jurisdiction or power to make the order under ss 37AF(1)(a) and 37AG(1)(a) of the Federal Court of Australia Act. Relevantly, s 37AH(1) provides that a party or any other person considered by the Court to have a sufficient interest in the making of a suppression order can apply for one, and also that the Court can make the order on its own initiative.
In my opinion, there is no basis on which it could be suggested that his Honour, having had his attention drawn to the reasons and orders of Penfold ACJ in Quach v RU (No 3) [2017] ACTSC 258 to which his pseudonym order expressly referred, did not have jurisdiction or power to make the order. That is so regardless of, first, whether or not the Commission had any involvement in the proceeding or otherwise and, secondly, whether, or to what extent, the Commission had power to have (or was or could be precluded by s 75 from having) any such involvement or to seek the pseudonym order.
Mr Quach was the appellant in the proceeding before Penfold ACJ. Her Honour said the following about the situation of the person identified by the pseudonym RU in both those and these proceedings (at [13] and [22]):
13.The respondent to the appeal submitted that her name should not be published; she noted:
(a)that she was involved in the matter only in her capacity as an employee of the HCCC performing her functions as such an employee;
(b) that there was no public interest in the publication of her name;
(c)that in the Magistrates Court the appellant’s application for a protection order against her had been summarily dismissed; and
(d)that in this Court the appellant’s appeal against that dismissal had been dismissed with costs.
[…]
22.I have made no adverse findings against the solicitor who is the respondent to the appeal. On the other hand, the appellant has made a number of allegations against her (including some described in my judgment on the appeal as “scurrilous”) that appear to be entirely without foundation. This of itself may be reason enough to maintain the protection that is granted to her by the Personal Violence Act in the absence of any court order. The submissions made on her behalf (at [13] above) also provide reasons not to deprive her of anonymity
A grant of leave to appeal requires an applicant to establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and to show that substantial injustice would result from a refusal of leave to appeal: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ.
Mr Quach has been unable to establish either of those criteria. He argued that there was some unspecified substantial injustice that would occur if the pseudonym order remained in place. He contended that, somehow, the substantive challenge which he wishes to agitate before the docket judge concerning the issue of a subpoena in the Supreme Court of the Australian Capital Territory and that the use of the Service and Execution of Process Act 1992 (Cth) was in some way invalid.
I was unable to understand any intelligible basis on which it could be said that the pseudonym order could impede Mr Quach’s wish or ability to challenge the validity of whatever steps were taken or not taken to issue or enforce that subpoena or to apply or not apply the provisions of the Service and Execution of Process Act. Those challenges all depend on matters of statutory construction and otherwise objective facts that are not connected to the use of the actual name of the person the subject of the pseudonym order.
Mr Quach also sought to assert that s 75 of the Health Care Complaints Act in some way entitled him to attack the retainer of the solicitor acting for RU.
There is no evidence or other material before me which would justify the displacement of the strong presumption that the Crown Solicitor had a contract of retainer entitling the Crown Solicitor to act for RU: cf. Oil Basins Limited v Watson (2017) 252 FCR 420 at 427-428 [39]-[41] per North ACJ and Rares J and the cases they referred to.
Conclusion
The application does not identify any cognisable or arguable legal error by the primary judge in making the orders he did. For these reasons, I am of opinion that the application for leave to appeal must be refused as the appeal sought to be brought has no prospect of success and is, indeed, unintelligible.
I dismiss the application for leave to appeal with costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 4 December 2019
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