Quach v RU (No 3)
[2017] ACTSC 258
•14 September 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Quach v RU (No 3) |
Citation: | [2017] ACTSC 258 |
Hearing Date: | Determined on the papers |
Last submissions received: | 23 August 2017 |
DecisionDate: | 14 September 2017 |
Before: | Penfold ACJ |
Decision: | 1. The identities of the appellant and the NSW Health Care Complaints Commission may be published in this and the judgments identified respectively as [2017] ACTSC 233 and [2017] ACTSC 234; and 2. It is permissible to circulate information concerning the proceedings in which those judgments were given, other than information disclosing the identity of the respondent to the appeal. |
Catchwords: | APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – application under Domestic Violence and Protection Orders Act 2008 (ACT) taken to have been made under Personal Violence Act 2016 (ACT) – whether publication of parties’ names is in the public interest – substantial volume of litigation instituted by appellant in ACT and NSW courts – public interest in other courts being able to identify litigation involving appellant – no basis for protecting identity of public authority criticised in earlier judgment – respondent to appellant’s protection order application involved only as employee of public authority performing her functions as such – identity to be protected. |
Legislation Cited: | Domestic Violence and Protection Orders Act 2008 (ACT) Family Violence Act 2016 (ACT) Personal Violence Act 2016 (ACT) ss 98, 99, 99(2)(a), 199 |
| Cases Cited: | GJ v AS [2011] ACTSC 119 Quach v RU (No 1) [2017] ACTSC 233 Quach v RU (No 2) [2017] ACTSC 234 |
| Parties: | Michael Van Thanh Quach (Appellant) RU (Respondent) |
Representation: | Counsel Unrepresented (Appellant) Mr B Thomson (Respondent) |
| Solicitors Unrepresented (Appellant) NSW Crown Solicitor’s Office (Respondent) | |
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] |
Background
On 13 April 2016, Magistrate Morrison dismissed the appellant’s application for a personal protection order against a solicitor employed by the NSW Health Care Complaints Commission (HCCC).
On 21 August 2017 I handed down two decisions in this matter, one relating to a contempt application made by the appellant in respect of the HCCC’s failure to comply with a subpoena issued in the appeal ([2017] ACTSC 233), and the other being my decision on the appeal ([2017] ACTSC 234).
In judgments published to the parties, no party’s name was disguised. However, for reasons set out below, it seemed that unless otherwise ordered, the names of the parties would need to be anonymised before there was any wider publication of the judgments.
When the earlier decisions were handed down, I indicated a preliminary view that in this case there might be a public interest in publishing the names of one or more of the parties, and I invited the parties to make submissions about that issue.
So far, the earlier judgments have not been published to anyone except the parties.
The legislation
The application for a protection order with which the current proceedings are concerned was made under the since repealed Domestic Violence and Protection Orders Act 2008 (ACT) (the repealed Act).
Section 199 of the Personal Violence Act 2016 (ACT), which in part replaces the repealed Act, provides that an application for a personal protection order made under the repealed Act is taken to have been made under the Personal Violence Act, and that a proceeding for or in relation to such an application is taken to be a proceeding under the Personal Violence Act.
Section 98 of the Personal Violence Act prohibits the publication of reports about proceedings for personal protection orders that identify various people, including a party to such a proceeding. Section 99 of that Act sets out exceptions to this prohibition. The sections are as follows:
98Publication of reports about proceedings—offence
(1)A person commits an offence if—
(a)the person publishes (completely or partly) an account or report of a proceeding for a protection order; and
(b)the account or report—
(i)identifies a party to the proceeding; or
(ii)identifies a person who is related to, or associated with, a party to the proceeding or is, or is claimed to be, in any other way concerned in the matter to which the proceeding relates; or
(iii)identifies a witness to the proceeding; or
(iv)allows the identity of a person mentioned in subparagraph (i), (ii) or (iii) to be worked out.
Maximum penalty: 10 penalty units.
NoteIt is an offence under the Criminal Code, s 712A for a person to publish information that identifies someone else as a person who is or was a child or young person in a proceeding under this Act.
(2)In this section:
publish means communicate or distribute information in a way or to an extent that makes it available to, or likely to come to the notice of, the public or a section of the public or anyone else not lawfully entitled to the information.
99Publication of reports about proceedings—exceptions to offence
(1)Section 98 does not prevent—
(a)a party to a proceeding for a protection order from—
(i)telling someone else about the contents of an order made in the proceeding; or
(ii)giving someone else a copy of the order; or
(b)the publication of an account or report of a proceeding for a protection order if the publication is a permitted publication about proceedings mentioned in schedule 1, section 1.2.
(2)A court may make an order allowing circulation of, or may permit the circulation of, information the publication of which would otherwise contravene section 98 only if satisfied that—
(a)it is in the public interest; or
(b)it will promote compliance with the protection order; or
(c)it is necessary for the proper operation of this Act.
In GJ v AS [2011] ACTSC 119, Gray J concluded that the predecessor of s 98 (s 111 of the repealed Act) applied to appeals from decisions on protection order applications.
The provisions of the Personal Violence Act quoted above thus appear to restrict the publication of the names of parties to the proceedings brought by the appellant.
Submissions
The appellant did not make any submissions in response to the invitation mentioned at [4] above.
Brief submissions were made on behalf of the respondent to the appeal and the HCCC (the respondent to the contempt application ([2017] ACTSC 233)).
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.
No submission was made that the identity of the HCCC should be disguised.
The respondent and the HCCC both conceded that the two earlier judgments deal with matters the publication of which might arguably be in the public interest.
Consideration
The appellant’s identity
In the judgment on the appeal, I noted at [2] the significant number of proceedings that have already been brought in the NSW courts by the appellant against the HCCC and the Occupational Division of the NSW Civil and Administrative Tribunal. That judgment also mentioned two applications for special leave to appeal to the High Court from decisions of NSW courts made in those proceedings.
The appellant moved from NSW to the ACT several years ago, and since then proceedings arising generally out of the NSW proceedings have also been instituted in ACT courts; the proceedings before me have also generated interlocutory proceedings in this Court and the Court of Appeal.
I am not aware that the appellant has been successful in any of the many proceedings mentioned above.
In short, the appellant has, in his continuing dispute with the HCCC, used an enormous amount of public resources, both the resources of the NSW and ACT courts and, indirectly, the resources of the NSW government bodies who have been defendants or respondents in the various proceedings. Furthermore, the ACT proceedings have emerged from attempts by the HCCC to enforce costs orders in its favour made in the NSW courts. It is not clear that the appellant can be relied on to meet costs orders made against him.
In these circumstances, it seems to me that the appellant’s substantial use of the court system in this jurisdiction should not be obscured from other courts, and from other targets of the appellant’s litigious inclinations, by a provision designed to protect individuals involved in legal proceedings that routinely arise out of troubled personal relationships (although not those covered by the Family Violence Act 2016 (ACT)).
I am satisfied that it would be in the public interest for the current litigation to be readily identifiable as involving the appellant.
The identity of the respondent to the appeal
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.
The identity of the respondent to the contempt application
As noted, the HCCC has not submitted that its identify should be disguised or concealed. In general I cannot see that a public authority ought to be able to hide behind a protective provision intended for individuals caught up in troubled relationships, especially in a case such as this in which the authority concerned has (in my judgment on the contempt application) been the subject of some low-level criticism of its dealing with the subpoena issued by the appellant.
Order
Accordingly, being satisfied for the purpose of s 99(2)(a) of the Personal Violence Act that it is in the public interest for the identities of the appellant and the HCCC to be able to be published, I order that, despite s 98 of the Personal Violence Act:
(a)the identities of the appellant and the HCCC may be published in this and the two other judgments mentioned at [2] above; and
(b)it is permissible to circulate information concerning the proceedings in which those judgments were given, other than information disclosing the identity of the respondent to the appeal.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: |
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