Quach v RU

Case [2019] FCA 2041


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:

  1. 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    3.Under s 37AH of the Federal Court of Australia Act 1976 (Cth) the name of the respondent not be published and henceforth the respondent be referred to by the pseudonym “RU”.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.

  2. 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.

  3. The proposed grounds of appeal are as follows:

    1.On the…

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Details
AGLC
Quach v RU [2019] FCA 2041
Case
[2019] FCA 2041
Decision Date

CaseChat Overview and Summary

The decision in the matter of Quach v RU involves an application for leave to appeal against a previous judgment. The applicant, Quach, sought to challenge the primary judge's orders. The respondent, RU, was represented by the Crown Solicitor, and the matter was heard in the Federal Court of Australia. The primary judge had ruled in favor of the Crown Solicitor's right to act for RU, based on the presumption of a contract of retainer. Quach aimed to contest this presumption, but the court found that no sufficient evidence was presented to overturn this presumption.

The legal issues before the court involved the validity of the Crown Solicitor's retainer and whether the presumption of such a contract could be challenged. The court examined whether there were any discernible legal errors in the primary judge's decision and if the appeal had any chance of success. The central question was whether Quach had identified any arguable legal errors that would justify overturning the primary judge's orders.

The court concluded that there was no evidence to displace the presumption that the Crown Solicitor had a valid contract of retainer with RU. This conclusion was supported by the decision in Oil Basins Limited v Watson, where the court emphasised the strength of such presumptions. Additionally, the court found that the application for leave to appeal did not identify any cognisable legal errors made by the primary judge. As a result, the appeal lacked a prospect of success and was deemed unintelligible. Consequently, the application for leave to appeal was dismissed.

The court further ordered that the application for leave to appeal be dismissed and that Quach pay RU's costs. These orders were to be entered in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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