FEDERAL COURT OF AUSTRALIA

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

ORDERS

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” in the Service and Execution Process Act 1992 (Cth), which “does not include a process that requires a person to produce a document in connection with discovery and inspection of documents.”

2    In the accompanying statement of claim, Mr Quach simply appears to have restated those unintelligible contentions.

3    The respondent, who has the pseudonym, RU, is an unfortunate legal officer of the Health Care Complaints Commission who attempted to enforce costs orders against Mr Quach that the Commission had obtained in his deregistration proceedings and appeal.

4    On 15 November 2019 I dealt with, and ultimately refused, Mr Quach’s application for leave to appeal from the order made by Griffiths J on 24 September 2019 that RU be referred to by the same pseudonym and for the same reasons as Penfold ACJ gave in Quach v RU (No 3) [2017] ACTSC 258 at [13]; see Quach v RU [2019] FCA 2041. During the course of argument on that occasion I observed of Mr Quach’s characterisation of a “subpoena for discovery” in the originating application that “there is no subpoena for discovey: you don’t get a subpoena for discovery”. Mr Quach applied for me to recuse myself today on the basis that this observation gave rise to an apprehension of bias. I refused to recuse myself since what I said reflected a reference to no more than a well settled principle of law: Commissioner for Railways v Small (1938) 38 SR(NSW) 564 at 573 – 574 per Jordan CJ with whom Davidson and Owen JJ agreed; see too Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342 at 352 per Mason J.

What is the matter?

5    Mr Quach seeks to assert that somehow this Court has jurisdiction to answer the question he posed in the originating application. RU contends that there is no justiciable controversy or matter within the meaning of Chapter III of the Constitution.

6    The proceeding is an abuse of process.

Background

7    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.

8    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.

9    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.

10    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.

11    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].

12    Her Honour found that the subpoena “was not effectively served, and that the subpoena was therefore itself ineffective”: RU (No 1) [2017] ACTSC 233 at [39] and that (at [58]) “a lot of time and effort has been wasted in the ongoing proceedings in relation to this particular subpoena”. That proved to be an understatement given Mr Quach’s attempt in this proceeding to re-agitate the efficacy of his service of the subpoena in respect of the proceeding in the Supreme Court that her Honour ordered be dismissed on 21 August 2017.

Mr Quach’s submissions

13    Mr Quach argued that the subpoena was not caught by the definition of a subpoena in s 3 of the SEP Act, because it was “a subpoena for discovery” and that definition excluded such a process since it provided:

"subpoena" , except in Part 4, means a process that requires a person to do one or both of the following:

                     (a)  to give oral evidence before a court, authority or person;

                     (b)  to produce a document or thing to a court, authority or person;

but does not include a process that requires a person to produce a document in connection with discovery and inspection of documents.

(emphasis added)

14    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

15    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.

16    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)

17    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.

18    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.

19    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.

20    Thirdly, so far as the Commission was concerned, there was a res judicata about the effectiveness of the subpoena. That is because Penfold J’s order dismissing Mr Quach’s contempt application determined, once for all, that the Commission was not in breach of any obligation to comply with the subpoena. Her Honour had found that service of it on the Commission was not effective. The dismissal of the whole appeal meant that the subpoena was no longer capable of serving any purpose in the Supreme Court proceeding because her Honour had determined that Mr Quach had no legally enforceable cause of action in respect of his litigated claims in it.

21    A decision by a superior court of record “is conclusive as to all relevant matters thereby decided, [whereas] the judgment of an inferior Court, involving a question of jurisdiction, is not final”: Mayor &c of London v Cox (1867) LR 2 HL 239 at 262 per Willes J, giving the unanimous advice of Blackburn J, Pigott B, Shee and Smith JJ that Lords Cranworth and Westbury (constituting the House) adopted. The corollary is that an order made by a superior court of record, such as the Supreme Court, which the court had no jurisdiction to make, is not a nullity, but rather it is valid and binding until set aside on appeal or under s 75(v) of the Constitution: Re Macks; Ex parte Saint (2000) 204 CLR 158 at 177-178 [22]-[23] per Gleeson CJ, 185-186 [52]-[53] per Gaudron J, 215-216 [151]-[152] per McHugh J, 235-236 [216] per Gummow J, 248-249 [255]-[257] per Kirby J, 279 [343]-[344] per Hayne and Callinan JJ. (see too: ARJ17 v Minister for Immigration and Border Protection (2017) 250 FCR 446 at 460 [40] per Rares J).

22    Accordingly, the Supreme Court’s decisions are conclusive and binding. Whatever rights Mr Quach had in respect of both the subpoena and the appeal against RU merged in her Honour’s orders, first, dismissing the contempt application and, secondly, the appeal. Those orders are valid and binding and cannot be challenged in this proceeding.

23    Fourthly, the document which Mr Quach served was a subpoena. In his classic judgment in Small 38 SR(NSW) at 573-574, Jordan CJ said:

A subpoena duces tecum is a writ which is issued by the Court as of course upon application by praecipe by or on behalf of a party to a cause or matter commanding some person or persons to attend before the Court to give evidence, and also to search for, bring and produce to the Court some document or documents relating to the cause or matter….

A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party. If it be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery….

Where the subpoena is addressed to a party, it is still necessary that it should state with reasonable particularity the documents which are to be produced: A-G v Wilson 9 Sim 526 at 529; Earl of Powis v Negus [1923] 1 Ch 186 at 190. It is true that a party, unlike a stranger, can be required to give discovery; but it is not legitimate to use a writ of subpoena duces tecum as a substitute for an application for discovery of documents, or as an alternative to an application for further and better discovery. Discovery applications should be made at the proper time and place.

(bolded emphasis added)

24    Although Dr Quach described the subpoena as “a subpoena for discovery”, it was a subpoena that he caused to be issued under the Court Procedure Rules. As I have explained above, Penfold J held that service of the subpoena on the Commission was not effective because it was not duly served in accordance with the SEP Act. Her Honour’s determination is conclusive and binds both Mr Quach, RU and the Commission. Moreover, in my opinion, her Honour’s determination that the subpoena was not effective and that Mr Quach could not compel compliance with it or seek a remedy in the contempt to enforce any obligation that the Commission might have had to comply with the subpoena, was indubitably correct for the reasons her Honour gave.

25    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

26    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.

27    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.

Associate:

Dated:    15 July 2020