Quach v RU (No 1)

[2017] ACTSC 233

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Quach v RU (No 1)

Citation:

[2017] ACTSC 233

Hearing Dates:

19 April, 2 June, 10 July 2017

DecisionDate:

21 August 2017

Before:

Penfold J

Decision:

1.   The contempt application is dismissed.

2.   Leave is given to the Health Care Complaints Commission to withdraw its application to set aside the subpoena dated 12 August 2016.

3.   Mr Quach is to pay:

(a)    half of the Health Care Complaints Commission’s costs of the contempt application and the application to set aside the subpoena; and

(b)    any costs incurred by RU in connection with these applications;

     as agreed or assessed.

Catchwords:

PROCEDURE – Contempt, attachment and sequestration –failure to comply with subpoena issued in ACT and served in NSW – application for subpoena recipient to be dealt with for contempt – initial reliance on statutory immunity to justify failure to comply – late application by recipient for subpoena to be set aside – subpoena not effectively served under Service and Execution of Process Act 1992 (Cth) – no contempt found – application for subpoena to be set aside withdrawn – recipient’s initial approach to subpoena delayed resolution of issues – successful recipient to receive only half its costs of applications.

Legislation Cited:

Criminal Code 2002 (ACT), s 720

Director of Public Prosecutions Act 1986 (NSW), s 28

Domestic Violence and Protection Orders Act 2008 (ACT)

Health Care Complaints Act 1993 (NSW), ss 80, 99A, 99A(1), 99A(2)
Service and Execution of Process Act 1992 (Cth), ss 3, 5, 29, 30, 30(1), 30(1)(b), 31, 31(a), 32, 59(a), pt 3, div 1

Court Procedures Rules 2006 (ACT), rr 4, 2444, 2445, 6606(4)

Service and Execution of Process Regulations 1993 (Cth), reg 4, Forms 2, 5

Cases Cited:

Annetts v McCann (1990) 170 CLR 596

Application of Robert William Whitton [2007] NSWSC 606
Quach v RU (No 2) [2017] ACTSC 234

Quach v NSW Civil and Administrative Tribunal (No 2) [2017] NSWCA 182

Parties:

Michael Van Thanh Quach (Appellant)

RU (Respondent)

Health Care Complaints Commission (NSW)   (Respondent/ Applicant)

Representation:

Counsel

Unrepresented (Appellant)

Mr B Thomson (Respondent)

Mr B Thomson (Respondent/Applicant)

Solicitors

Unrepresented (Appellant)

NSW Crown Solicitors Office (Respondent)

NSW Crown Solicitors Office (Respondent/Applicant)

File Number:

SCA 36 of 2016

Decision under appeal: 

Court:  ACT Magistrates Court

Before:  Magistrate Morrison

Date of Decision:     13 April 2016

Case Title:               Dr Michael Van Thanh Quach v [RU]

Court File Number:   [RO 16/177]

Introduction

1. Michael Van Thanh Quach appealed against a Magistrate’s refusal to make a personal protection order against a solicitor employed by the NSW Health Care Complaints Commission (the HCCC).  The decision on that appeal was deferred until this matter was resolved, and can be found at Quach v RU (No 2) [2017] ACTSC 234.

The subpoena

1. In September 2016, before the appeal was heard, Mr Quach served a subpoena dated 12 August 2016 on the HCCC requiring the production of a large number of documents, many of them not obviously relevant to his appeal (the…