Quach v RU (No 2)

Case [2020] FCA 957

FEDERAL COURT OF AUSTRALIA

Quach v RU (No 2) [2020] FCA 957

File number: ACD 59 of 2019
Judge: RARES J
Date of judgment: 29 May 2020
Catchwords: PRACTICE AND PROCEDURE – where application raised no justiciable controversy and was abuse of process – where applicant sought declaration that non-party had not complied with subpoena after final orders made dismissing all applicant’s claims in proceeding in another court–  where res judicata in final orders of other court and issue estoppel by its finding that service of subpoena ineffective.
Legislation:

Constitution, Chapter III

Service and Execution of Process Act 1992 (Cth), s 3, 30, 31, 32

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

Health Care Complaints Act 1993 (NSW), s 99

Court Procedures Rules 2006 (ACT), r 6602
Cases cited:

ARJ17 v Minister for Immigration and Border Protection (2017) 250 FCR 446

Blair v Curran (1939) 62 CLR 464

Commissioner for Railways v Small (1938) 38 SR(NSW) 564

Mayor &c of London v Cox (1867) LR 2 HL 239

Quach v RU (No 1) [2017] ACTSC 233

Quach v RU (No 2) [2017] ACTSC 234

Quach v RU (No 3) [2017] ACTSC 258

Quach v RU [2019] FCA 2041

Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342

Re Macks; Ex parte Saint (2000) 204 CLR 158

Walton v Gardiner (1993) 177 CLR 373
Date of hearing: 29 May 2020
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 27
Counsel for the Applicant: The applicant appeared for himself
Counsel for the Respondent: Mr J Emmett with Mr R Sud
Solicitor for the Respondent: Mr B Thomson of NSW Crown Solicitor’s Office

ORDERS

ACD 59 of 2019
BETWEEN:

DR MICHAEL QUACH

Applicant
AND:

RU

Respondent

JUDGE:

RARES J

DATE OF ORDER:

29 MAY 2020

THE COURT ORDERS THAT:

1.The proceeding be dismissed as an abuse of process.

2.The applicant pay the respondent’s cost of the proceeding.

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. Michael Quach is a deregistered medical practitioner.  On 22 August 2019, he filed an originating application in which he claimed:

    1. The question asked of the Federal Court of Australia is in its jurisdiction of the Service and Execution Process Act 1992 (Cth), whether it has any application to the Subpoena for discovery, dated 12 August 2016, issued by the Australian Capital Territory Supreme Court and served on the New South Wales Health Care Complaints Commission (Annexure ‘MQ1’ of Affidavit 20 August 2019).

    2. The finding sought is that the Service and Execution Process Act 1992 (Cth) does not have any application to the Subpoena for discovery, dated 12 August 2016, issued by the Australian Capital Territory Supreme Court and served on the New South Wales Health Care Complaints Commission (Annexure ‘MQ1’ of Affidavit 20 August 2019), pursuant to the definition of “Subpoena”

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Details
AGLC
Quach v RU (No 2) [2020] FCA 957
Case
[2020] FCA 957
Decision Date

CaseChat Overview and Summary

The proceeding between Mr Quach and RU (No 2) was filed in the Federal Court of Australia and concerns an application by Mr Quach seeking a declaration that a non-party had not complied with a subpoena. The application was filed after the Supreme Court of the Australian Capital Territory had dismissed all of Mr Quach's claims against RU. The court was required to determine whether the application raised a justiciable controversy or if it was an abuse of process. The court considered whether the application was legally incoherent and foredoomed to fail.

The court found that the application was an abuse of process as it raised no justiciable controversy. The final orders of the Supreme Court created a res judicata that extinguished all of Mr Quach's rights against RU in relation to the subject matter of that proceeding. Furthermore, the court determined that the subpoena was ineffective, creating an issue estoppel. The dismissal of Mr Quach's appeal in the Supreme Court resulted in the creation of a res judicata in which all Mr Quach's rights in relation to RU merged in the judgment. The court concluded that the application was incapable of resolving any matter between the parties and was legally incoherent.

The court dismissed the proceeding as an abuse of process and ordered Mr Quach to pay the respondent's costs of the proceeding. The dismissal was based on the finding that the application raised no justiciable controversy, was legally incoherent, and was foredoomed to fail. The court determined that the final orders of the Supreme Court created a res judicata and an issue estoppel, which made the application unmaintainable.

Orders

Orders of the court

1. The proceeding be dismissed as an abuse of process.

2. The applicant pay the respondent’s cost of the proceeding.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The proceeding is an abuse of process.Background On 12 August 2016 Mr Quach caused the Registrar of the Supreme Court of the Australian Capital Territory to issue a subpoena for production addressed to the proper officer of the Commission in accordance with r 6602 and Form 6.10 of the Court Procedures Rules 2006 (ACT) that was returnable on 16 September at 9.30am before the Supreme Court. The subpoena required production of a vast amount of documents. The Supreme Court proceeding, in which the subpoena was issued, was an appeal by Mr Quach against a magistrate’s dismissal of what Penfold J correctly described as “a variety of more or less bizarre claims about RU’s actions”: Quach v RU (No 2) [2017] ACTSC 234 at [3]. The magistrate had dismissed Mr Quach’s application for a personal protection order against RU based on her having sent 2 emails to him on 18 December 2015 seeking recovery on behalf of the Commission of about $132,000 in respect of costs orders against him. After the Commission received the subpoena on 6 September 2016, it wrote to Mr Quach asserting, incorrectly, that s 99A(2) of the Health Care Complaints Act 1993 (NSW) protected it from being compelled to produce any documents containing information obtained in its exercising a function under that Act and that the Commission had decided not to exercise its discretion under s 99B to produce documents in certain circumstances. On 19 September 2016 Mr Quach filed an application within his appeal seeking to have the Commission committed for contempt of court based on its failure to comply with the subpoena which Penfold J heard over 2 days after an earlier day’s hearing of the appeal: Quach v RU (No 1) [2017] ACTSC 233. Her Honour delivered reasons and made orders on 21 August 2017 dismissing both the contempt application and the appeal. Her Honour noted that, in answer to the contempt application, the Commission disclaimed reliance on s 99A of the Health Care Complaints Act to excuse its non-compliance with the subpoena. However, Penfold J upheld the Commission’s three substantive defences to the contempt application based on the Service and Execution of Process Act 1992 (Cth) (the SEP Act). Her Honour found that:·the subpoena was a “subpoena” within the meaning of the definition of ‘subpoena’ in s 3 of the SEP Act: RU(No 1) [2017] ACTSC 233 at [20];·because s 30(1)(a) of the SEP Act provided that service of a subpoena “is effective only” if the period between service and the date for compliance was not less than 14 days, service of the subpoena on 6 September 2016 requiring production on 16 September 2016, was ineffective: RU (No1) [2017] ACTSC 233 at [23]-[26], [36]-[39];·because s 31(a) of the SEP Act provided that service of a subpoena “is effective only if” copies of the notices prescribed under regulations made under the SEP Act were attached to it and the subpoena as served did not have attached a notice in accordance with Form 2 that reg 4 of the Service and Execution of Process Regulations 1993 (Cth) prescribed, its service was ineffective: RU (No 1) [2017] ACTSC 233 at [27]-[32], [36]-[39]·because s 32 of the SEP Act provided that “service is effective only if” allowances and travelling expenses of complying with the subpoena were paid or tendered to the person to whom the subpoena was addressed at the time of service or a reasonable time before the time for compliance, Mr Quach’s apparent failure to pay or tender an amount to meet the expenses of compliance also rendered service apparently ineffective: RU (No 1) [2017] ACTSC 233 at [33]-[39].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

If what Mr Quach was seeking to do was to obtain discovery by using the subpoena, it was plainly an abuse of the process of the Supreme Court and was not capable of being served under the SEP Act in any event: Small 38 SR(NSW) at 573-574.Conclusion In my opinion this application has no forensic merit. It is incapable of resolving any matter between the Commission or RU and Mr Quach. The subpoena could have no possible continuing force or effect following the dismissal of the appeal in which it was issued and Penfold J’s determination that service of it was not effective. It cannot be the subject matter of this or any other litigation. For these reasons, I am of opinion that there is no “matter” or controversy between the parties. This proceeding must be dismissed for want of jurisdiction. Moreover, I am also of opinion that it is an abuse of process for the reasons I have given: Walton v Gardiner (1993) 177 CLR 378 at 392-393 per Mason CJ, Deane and Dawson JJ. I will order that the proceeding be dismissed as an abuse of process with costs.

Ratio Decidendi

Legal Principle Established

He argued that the subpoena required, or was issued in connection with, discovery. He contended that this Court had jurisdiction under the SEP Act to determine whether that argument was correct. He submitted that, because the Commission had not answered the subpoena it was still “outstanding” and that Penfold J’s decision was inconsistent with the SEP Act.Consideration In my opinion the process that Mr Quach has filed in this Court raises no justiciable controversy and is an abuse of the process of the Court, because it is foredoomed to fail and is legally incoherent. In Blair v Curran (1939) 62 CLR 464 at 531-532, Dixon J said: A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.(bold emphasis added) Her Honour’s order dismissing the appeal in the Supreme Court created a res judicata that extinguished of all Mr Quach’s rights against RU in respect of the subject matter of that proceeding. Moreover, the present case is unmaintainable since Mr Quach sought, somehow, to instigate it against RU in this Court in relation to a subject matter, namely the final decision of the Supreme Court in respect of the subpoena addressed to the Commission, that, transparently, had nothing to do with her. First, Penfold J determined that the subpoena was actually a subpoena but was ineffective. That determination created, at the very least, an issue estoppel. That was because the finding was an essential conclusion of law in her Honour’s decision to dismiss the contempt proceeding on the basis that the Commission could not be found in contempt of the Supreme Court’s order to produce documents the subject of the subpoena if it was not effective by law to compel their production. Secondly, her Honour ordered that Mr Quach’s appeal, in which he had issued the subpoena, be dismissed. The consequence of that order was the creation of a res judicata in which all Mr Quach’s rights in relation to RU merged in the judgment. In addition, Mr Quach’s rights to enforce the subpoena against the Commission merged in her Honour’s order dismissing his contempt application.