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under Service and Execution of Process Act 1992 (Cth) – no contempt found – application for subpoena to be set aside withdrawn – recipient’s initial approach to subpoena delayed resolution of issues – successful recipient to receive only half its costs of applications.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) 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 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
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
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…
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- Quach v RU (No 1) [2017] ACTSC 233
- Case
- [2017] ACTSC 233
- Decision Date
CaseChat Overview and Summary
The court found that the subpoena was not effectively served under the relevant federal legislation, thus Mr Quach's failure to comply did not constitute contempt. The court also noted that Mr Quach's initial reliance on statutory immunity to justify his non-compliance delayed the resolution of the issues. Consequently, the application to set aside the subpoena was withdrawn, and the contempt application was dismissed. The court held that Mr Quach was responsible for only half of the Health Care Complaints Commission's costs related to the contempt application and the application to set aside the subpoena, as well as any costs incurred by RU in connection with these applications.
In summary, the court dismissed the contempt application and allowed the Health Care Complaints Commission to withdraw its application to set aside the subpoena. Mr Quach was ordered to pay half of the Health Care Complaints Commission's costs and any costs incurred by RU in relation to these applications. The court's decision underscored the importance of proper service of subpoenas and the consequences of delaying the resolution of legal issues through reliance on questionable legal defences.
Orders
Orders of the court
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.
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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