Federal Court of Australia

Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s application for summary judgment is allowed.

2.    The applicant is to pay the costs of the respondent to be agreed or taxed on an indemnity basis.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The respondent applies, by way of an interlocutory application filed on 26 November 2020 for summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01(1)(b), (c) and/or (d) of the Federal Court Rules 2011 (Cth) (FCR) on the ground the applicant has no reasonable prospect of success in prosecuting this proceeding. In the alternative, the respondent applies to have the statement of claim struck out pursuant to r 16.21 of the FCR.

2    For the reasons below, the application for summary dismissal is granted. Had the application for summary judgment not been granted, the pleadings would have been struck out without leave to replead.

Factual context

3    On 10 April 2015, the NSW Civil and Administrative Tribunal (NCAT), having found various complaints regarding the applicant had been substantiated, made orders pursuant to s 149C of the Health Practitioner Regulation National Law Act 2009 (NSW) (National Law). Those orders included: the applicant's registration be cancelled; that no application for review may be made for a period of seven years from the date of the decision; and the applicant be prohibited from providing any health service on a public, private or volunteer basis including community health services, counselling, teaching, mental health services, health education services and welfare services: Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32, and see Health Care Complaints Commission v Quach [2015] NSWCATOD 2.

4    On 27 February 2020, the Health Care Complaints Commission (HCCC) informed the Australian Health Practitioner Regulation Agency (AHPRA) that it was concerned the applicant was practising as a medical practitioner while unregistered. The HCCC is an independent statutory body, established by the Health Care Complaints Act 1993 (NSW) (HCCC Act), which deals with complaints with respect to professional conduct of health practitioners. AHPRA commenced an investigation under Part 7 of the National Law, and assigned the matter to Ms Shameema Barekzai for management. Ms Barekzai is employed as a legal advisor at AHPRA and since at least May 2018 has been appointed as an inspector under s 239 of the National Law. Through the investigative process, AHPRA became aware of the applicant's LinkedIn profiles, which referred to him as a “general practitioner”. On 31 August 2020, Ms Barekzai wrote to the applicant notifying him that: AHPRA believed the applicant may have contravened, and was continuing to contravene, provisions of the National Law by making false claims as to his registration as a health practitioner: s 116, and as to specialist registration: s 118; the consequences for offences under the National Law, and that Ms Barekzai had been appointed to investigate the matter. The applicant was asked, inter alia, to remove the references to “general practitioner” on his two LinkedIn pages. On 31 August 2020 the applicant emailed Ms Barekzai advising that one of the LinkedIn pages had been closed. On 2 September 2020 the applicant wrote to Ms Barekzai confirming that both LinkedIn accounts had been closed.

5    The respondent relied on the affidavit of May Giuliani sworn 12 March 2021. Ms Giuliani is employed by AHPRA as their corporate counsel and her affidavit primarily described AHPRA, and annexed documentation thereto in relation to AHPRA’s dealings with the applicant. The applicant objected to MG-1, which is a guide to the national registration and accreditation scheme for health professions, published by the Australian Health Ministers’ Advisory Council, and exhibits MG-4 and MG-5, the decisions of NCAT deregistering the applicant, on the basis of relevance. The evidence is relevant to the issues raised and was admitted. The applicant asked to cross-examine Ms Giuliani. He had given no notice of this request and her availability was unknown. The topic on which he said he wished to ask questions was in relation to Ms Giuliani’s understanding of what a Type K body was. The respondent opposed leave being granted to the applicant, and referred inter alia to National Mutual Life Association of Australasia Limited v Tolfield Pty Ltd (No 2) [2011] FCA 1309 at [5]-[13], as to the relevant principles for the grant of leave on an interlocutory application. I refused leave to cross-examine. Ms Giuliani’s affidavit is clear and limited to matters relevant to this application. Moreover, given the nature of this application and the basis on which it is advanced, the Court would not be assisted by cross-examination on that topic.

6    The applicant relied on four affidavits he had sworn dated 16 November 2020, 3 February 2021, 11 February 2021 and 14 March 2021. The last of the affidavits was filed on the day of the hearing in breach of the orders as to the filing of material, which was to be before 18 February 2021. The respondent objected to the last affidavit on that basis and that in reality it was a submission. The respondent objected to the remaining affidavits in so far as they also constituted submissions. I admitted the affidavits, with the limitation that some aspects were submissions and would be treated as such. An opportunity was given to the respondent to consider whether it wished to address any matters raised by the latest affidavit. The respondent has since notified the Court that it does not wish to address any additional matters in that affidavit.

These proceedings

7    In the originating application filed on 14 September 2020 the applicant claims:

Details of claim

On the grounds stated in the statement of claim, accompanying affidavit or other document prescribed by the Rules, the Applicant claims:

1. Australian Health Practitioner Regulation Authority, in Shameema Barekzai, has made false representation in relation to a Commonwealth body, pursuant to Section 150.1 of the Criminal Code 1995 (Cth).

Claim for interlocutory relief

The Applicant also claims interlocutory relief.

1.    AHPRA, as a “national body,” effectively cancelled my medical registration in all states and territory of Australia on 24 April 2015 was invalid on the grounds that:

I. AHPRA did not have the valid statutory authority as a Commonwealth body (Gedeon v NSW Crime Commission [2008] HCA 43 at [43]) for cancellation of registration as a medical practitioner in all states and territories of Australia, and

II. pursuant to Yager v The Queen [1977] HCA 10 at [8] of Mason J decision, and Quach v Butt [2016] ACTSC 153 at [13], Mason CJ ruled that there is,

“no legitimate foundation for resorting to the definitions [cancellation of registration] contained in …[Health Practitioner Regulation National Law (NSW)] …for the purpose of modifying or qualifying another statutory definition [cancellation of registration] contained in a different Act [Health Practitioner Regulation National Law; (NT), (ACT), (WA), (QLD), (Tasmania), (South Australia), (Victoria)] of Parliament.”

8    The statement of claim is in the following terms:

1. Australian Health Practitioner Regulation Authority, in Shameema Barekzai, has made false representation in relation to a Commonwealth body, pursuant to Section 150.1 of the Criminal Code 1995 (Cth).

2. The Australian Health Practitioner Regulatory Authority, as a “national body,” acted without valid (Commonwealth) statutory authority to effectively cancel the Plaintiff's registration as a medical practitioner on 24 April 2015, in every state and territory jurisdiction of Health Practitioner Regulation National Law; (NSW), (NT), (ACT), (WA), (QLD), (Tasmania), (South Australia), (Victoria).

3. The Plaintiff claims:

(i) Compensatory damages

(ii) Interest

(iii) Costs

9    I note that on 1 December 2020, the applicant applied to the Court for an injunction under s 123.1 of the Criminal Code 1995 (Cth) (Criminal Code), against the Victorian State Government Statutory Authority, it appears to be based on the belief a Victorian government authority is participating in the proceeding. The basis of this application is unclear, except that it is linked to the substantive proceedings. The injunction sought was to prevent the Victorian government authority from providing instructions in relation to these proceedings. The applicant has since amended the application to base it on s 150.5 of the Criminal Code.

Relevant principles

Summary judgment

10    Section 31A of the FCA Act relevantly provides:

(1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is prosecuting the proceeding or that part of the proceeding; and

(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a) the first party is defending the proceeding or that part of the proceeding; and

(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a) hopeless; or

(b) bound to fail;

for it to have no reasonable prospect of success.

(4) This section does not limit any powers that the Court has apart from this section.

(5) This section does not apply to criminal proceedings.

11    The power to dismiss an action summarily is not to be exercised lightly: Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [60] and see [24], although it does not require that the proceedings to be seen as “frivolous”, “untenable” or “groundless”: Spencer at [24], [53]-[60]. The critical question is whether the moving party has persuaded the court that the opposing party has no reasonable prospect of success: Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126; (2011) 203 FCR 293 at [17].

12    The meaning of reasonable prospect of success in this provision was considered in Spencer with the plurality, Hayne, Crennan, Kiefel and Bell JJ observing at [59]-[60]:

[59] In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.

[60] Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success…

13    The inquiry required under s 31A is “not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail”: Spencer at [52].

14    The assessment of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 at [28].

15    Rule 26.01 provides for circumstances in which a party can make an application to the Court for summary judgment which relevantly includes where no reasonable cause of action is disclosed: r 26.01(c); the applicant has no reasonable prospects of successfully prosecuting the proceeding: r 26.01(a); and where proceedings are vexatious or an abuse of process: r 26.01(b).

Strike out

16    An application for the striking out of pleadings may be made on one or more of the grounds in r 16.21, which relevantly include that the pleading: contains frivolous or vexatious material: r 16.21(b); is evasive or ambiguous: r 16.21(c); is likely to cause prejudice, embarrassment or delay in the proceeding: r 16.21(d); fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading: r 16.21(e); or is otherwise an abuse of the process of the Court: r 16.21(f).

17    Rule 16.21 is critically concerned with the sufficiency of the pleadings. The requirements for a pleading were described in Wride v Schulze [2004] FCAFC 216 at [25] as follows:

[T]he pleadings must disclose a reasonable cause of action against the party against whom the cause of action is brought and must state all material facts necessary to establish that cause of action and the relief sought. A “reasonable cause of action” for this purpose means one which has some chance of success if regard is had only to the allegations and the pleadings relied on by the applicant.

18    Rules 16.02 and 16.21 must be interpreted and applied in light of s 37M of the FCA Act, which provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629 at [101].

Submissions

19    The respondent submitted that the substantive proceeding should be dismissed as the applicant does not have power to bring proceedings in relation to s 150.1 of the Criminal Code, referring to s 69(1) of the Judiciary Act 1903 (Cth). The respondent submitted that to the extent the substantive application is brought in relation to a “false representation” by Ms Barekzai in her letter dated 30 August 2020 this is misconceived. It was submitted that this was the case as Ms Barekzai is employed by AHPRA and that the description by Ms Barekzai in her letter to the applicant, if that be the basis for the claim, is accurate. It submitted that in any event, it is a Commonwealth Body within the meaning of s 150.1(7) of the Criminal Code. In addition, there is no basis for any allegation of bad faith on the part of Ms Barekzai, and therefore she would have the benefit of s 236 of the National Law protecting her from personal liability. Accordingly, the proceeding is misconceived, baseless, frivolous, destined to fail and lacks utility. It submitted that the decision to cancel the applicant’s registration was made by NCAT and not the respondent.

20    The applicant took issue with the submissions contending that he could bring the proceedings. He submitted that this Court “has jurisdiction in the Criminal Code Act 1995 (Cth) as a National Practice Area for Federal Crimes and Related Proceedings. The Federal Court (Criminal Proceedings) Rules 2016 apply to this National Practice Area”. The applicant submitted that the respondent’s application for summary judgment under the FCR has no application in the Federal Court (Criminal Proceedings) Rules 2016 (Cth) (Criminal Rules). He relied on s 80 of the Judiciary Act and asserted that the common law applies. Based on that, he submitted s 4G of the Crimes Act 1914 (Cth) does not apply, referring to Yager v The Queen [2010] HCA 10; (2010) 139 CLR 28. He submitted that AHPRA’s submission on “The National Law” at [4.2g] has no application in the Federal Court of Australia because “the Federal Court, to rule on whether you engaged in professional misconduct. That’s not within our jurisdiction. It’s not a matter for this court to rule it”, said to be a statement made by Griffiths J during a hearing on 1 August 2019 in Quach v MLC Life Ltd (No 1) [2019] FCA 1194. He submitted AHPRA is not a Commonwealth body under s 150.1(7) of the Criminal Code. During the hearing he submitted that he was bringing a private prosecution under s 13 of the Crimes Act. He submitted that he was also relying on Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 (Annetts) that “where a private prosecution under section 150.1 subpart (1) is not excluded by plain words of necessary intendment. Nowhere under that section says that I need – I need the Attorney-General to give consent”. On Annetts, he submitted he should be afforded a fair hearing and not be subject to summary dismissal. Further, he submitted that AHPRA itself did not exist, and that Ms Barekzai was impersonating a Commonwealth body.

Legislative scheme

21    In March 2008 the Council of Australian Governments signed the Intergovernmental Agreement for a National Registration and Accreditation Scheme (NRAS) for certain health professions. The agreement established a single, national scheme for registered health practitioners. The NRAS was implemented by the Health Practitioner Regulation National Law, which is effected pursuant to separate legislation in each state and territory of Australia. Relevantly in NSW, the National Law scheme is given effect through the Health Practitioner Regulation National Law Act 2009 (NSW).

22    The object of the NRAS is inter alia, to establish a national registration and accreditation scheme for the regulation of health practitioners (and students): s 3(1). Its objectives include to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered: s 3(2)(a).

23    The law created a single national entity, with s 7 providing:

7 Single national entity

(1) It is the intention of the Parliament of this jurisdiction that this Law as applied by an Act of this jurisdiction, together with this Law as applied by Acts of the other participating jurisdictions, has the effect that an entity established by or under this Law is one single national entity, with functions conferred by this Law as so applied.

(2) An entity established by or under this Law has power to do acts in or in relation to this jurisdiction in the exercise of a function expressed to be conferred on it by this Law as applied by Acts of each participating jurisdiction.

(3) An entity established by or under this Law may exercise its functions in relation to—

(a) one participating jurisdiction; or

(b) 2 or more or all participating jurisdictions collectively.

(4) In this section, a reference to this Law as applied by an Act of a jurisdiction includes a reference to a law that substantially corresponds to this Law enacted in a jurisdiction.

24    AHPRA is the statutory authority responsible for administering the NRAS, established by s 23 of the National Law:

23 National Agency

(1) The Australian Health Practitioner Regulation Agency is established.

(2) The National Agency—

(a) is a body corporate with perpetual succession; and

(b) has a common seal; and

(c) may sue and be sued in its corporate name.

(3) The National Agency represents the State.

(4) Schedule 3 sets out provisions relating to the National Agency.

25    Schedule 3 relevantly provides:

5 Staff of National Agency

(1) The National Agency may, for the purpose of performing its functions, employ staff.

(2) The staff of the National Agency are to be employed on the terms and conditions decided by the National Agency from time to time.

(3) Subclause (2) is subject to any relevant industrial award or agreement that applies to the staff.

6 Staff seconded to National Agency

The National Agency may make arrangements for the services of any of the following persons to be made available to the National Agency in connection with the exercise of its functions—

(a) a person who is a member of the staff of a government agency of a participating jurisdiction or the Commonwealth;

(b) a person who is a member of the staff of a local registration authority.

26    AHPRA is an Australian Government body, and is listed on the Australian Government Register as a “Type K – National Law body” under the Federal Health Portfolio. Its functions are to provide administrative assistance and support to national boards: s 25.

27    AHPRA has functions and powers in relation to the investigation of registered professionals. Relevantly, the National Law also creates certain criminal offences relevant to registered health practitioners. These offences can be reported to AHPRA and are managed by AHPRA’s Criminal Offences Unit. The criminal offences include restrictions on the use of protected and specialist titles: ss 113-115, title protection and “holding out” offences: ss 116-119. These provisions relevantly include prohibitions against unregistered persons claiming to be a registered health practitioner (or a specialist health practitioner). An investigator has the function of conducting investigations to enforce compliance with the National Law: s 238. In conducting an investigation, an investigator has the powers set out in sch 6 of the National Law. AHPRA staff are not personally liable for anything done or omitted to be done in good faith in the exercise of a function under the National Law, or in the reasonable belief that the act or omission was the exercise of a function under the National Law: s 236.

28    AHPRA’s work is overseen by an Agency Management Committee. This Committee is appointed by the Council of Australian Governments (COAG) Health Council in accordance with the National Law in force in each state and territory.

Consideration

29    These proceedings are misconceived.

30    A number of observations may be made.

31    First, contrary to the applicant’s contention, AHPRA’s submission as to the legislative structure in respect to the National Law is relevant to determining this issue. Nothing in the passage of Quach v MLC Life Ltd which the applicant relied on at [20] above, suggests otherwise. A brief consideration of the legislative scheme as described above, demonstrates the fallacy in various aspects of the applicant’s submissions as to its operation.

32    Second, the applicant does not identify in his pleading any of the material facts on which the allegation is based. Such pleading is plainly insufficient. The applicant does not identify when and to whom the purported false statement was made. I note that although the proceedings are instituted by originating application against AHPRA, the applicant made submissions that such a body did not exist.

33    During submissions, the applicant said the allegation related to a letter Ms Barekzai sent to him dated 31 August 2020. However, that letter is in the following terms:

We are a national body whose main aim is to protect the health and safety of the public. We are responsible for ensuring compliance with the Health Practitioner Regulation National Law, as in force in each state and territory (the National Law), and we work in partnership with the Medical Board of Australia (the Board) in this regard.

34    That letter does no more than describe AHPRA as a national body; it is an accurate description. Ms Barekzai did not identify herself as Commonwealth body. There is no proper basis on which the applicant could establish the factual assertion underlying his allegation. It follows, to put another way, the applicant has no reasonable prospect of successfully prosecuting the proceeding. I note in any event, in her position, Ms Barekzai is protected from personal liability for anything done or omitted to be done in good faith, in the exercise of her function under the National Law, or in in the reasonable belief that the act or omission was in the exercise of a function under the National Law: s 236.

35    Although the only claim in the originating application relates to the false statement said to be made by Ms Barekzai, the applicant’s statement of claim makes an allegation in relation to AHPRA cancelling his registration. Given Ms Barekzai has only been employed by AHPRA since 2018, it is clear that any conduct on her part could not form the basis of this aspect of the statement of claim. Leaving aside the deficiencies in the statement of claim, the assertion that AHPRA cancelled his registration is plainly incorrect, as it was NCAT which made orders to that effect: Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32, and see Health Care Complaints Commission v Quach [2015] NSWCATOD 2. That was the body entrusted with the power to do so: ss 149, 149C of the National Law. AHPRA maintains the national register of practitioners, and acts on that decision. There is a process of appeal stipulated in the National Law. Any decision in respect to cancelling a health practitioner’s registration is done by operation of the National Law, which is State or Territory Law. The applicant’s reliance on Gedeon v Commissioner of NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120 and Yager does not assist him. I note that the applicant’s repeated attempts to overturn those decisions of NCAT in the New South Wales Supreme Court have been unsuccessful. If this is another attempt to do so, it is plainly without foundation. Moreover, in so far as the applicant makes an allegation in relation to cancelling his registration, he also has not identified any basis on which this Court would have jurisdiction.

36    Third, the only identified claim in this proceeding relates to Ms Barekzai. The applicant submitted that he is bringing a private prosecution against Ms Barekzai pursuant to s 13 of the Crimes Act. The applicant asserts that Ms Barekzai has committed a criminal offence contrary to s 150.1 of the Criminal Code. His submissions also make clear that he is pursuing her for having committed a criminal offence, as he contended that this Court has criminal jurisdiction by virtue of the National Practice Area for Federal Crimes and Related Proceedings. This Court does not have a general criminal jurisdiction, although it does have such jurisdiction in respect to some matters. The existence of a National Practice Area does not create a general jurisdiction not otherwise provided. He also contended that the Criminal Rules apply to the determination of these proceedings, and not the FCR. The applicant has not and, as explained below, could not comply with the Criminal Rules. The applicant has commenced these proceeding by filing an originating application and statement of claim, which is susceptible to an application for summary dismissal. As is apparent from s 31A of the FCA Act “criminal proceedings” are excluded from the scope of an application for summary judgment. However, these proceedings do not fall within that concept, as defined. That term is defined in sch 1 of the Criminal Rules as meaning any of the following proceedings: (a) criminal appeal proceedings, (b) indictable primary proceedings, and (c) summary criminal proceedings. Relevantly, “indictable primary proceedings” is defined in s 23AB of the FCA Act: see Note 2 to r 1.11 of the Criminal Rules. These proceeding brought by the applicant do not fall within the scope of s 23AB and plainly nor does it fall within the scope of “criminal appeal proceedings” or “summary criminal proceedings”. Accordingly, these proceedings are not criminal proceedings within the definition of the FCA Act. It follows that there is no proper basis for the applicant’s assertion that s 31A of the FCA Act and r 26.01 of the FCR does not apply.

37    That said, the applicant, on his own submission, is attempting to institute criminal proceedings contrary to s 150.1 of the Criminal Code. Section 150 is an indictable offence: s 4G of the Crimes Act. The applicant has no authority to bring such criminal proceedings in relation to an indictable offence in this Court. Although the applicant by these proceedings intended to initiate criminal proceedings in this Court by way of a private prosecution, he cannot do so.

38    In Taylor v Attorney-General (Cth) [2019] HCA 30; (2019) 372 ALR 581 (Taylor), the High Court discussed the ability of a private person to bring a prosecution for an indictable offence. It suffices to recite the discussion at [17]-[23]:

[17] Section 68(1) of the Judiciary Act operates in general to apply State and Territory criminal procedure in respect of persons charged with Commonwealth offences in respect of whom State and Territory courts are invested with federal jurisdiction under s 68(2). Section 68(1) does so by picking up specified categories of State and Territory laws. It provides:

"The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:

   (a)    their summary conviction; and

   (b)    their examination and commitment for trial on indictment; and

   (c)    their trial and conviction on indictment; and

(d)    the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;

and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section."

[18] The first three paragraphs of s 68(1) recognise the distinction, well enough illustrated by the structure of the Criminal Procedure Act, between the procedure typically applicable under State and Territory laws to offences heard and determined summarily and the procedure typically applicable to offences tried on indictment. "There is", as Dixon J said in Munday v Gill in words which remain as true today as they did at the time of enactment of the Judiciary Act, "a great distinction in history, in substance and in present practice between summary proceedings and trial upon indictment". Trials on indictment are in traditional parlance "pleas of the Crown": proceedings in form and in substance between an individual and the State. A prosecution for an offence punishable summarily is in contrast "a proceeding between subject and subject".

[19] The second and third paragraphs of s 68(1) recognise the traditional distinction, again well enough illustrated by the structure of the Criminal Procedure Act, between two distinct stages of the procedure typically applicable to offences tried on indictment: examination and commitment for trial on indictment, and trial and conviction on indictment. In R v Murphy, it was held that these two distinct stages form part of the one curial process that results in the resolution of the "matter" in respect of which federal jurisdiction is conferred by s 68(2). In the language of that case, "[e]ven though they are properly to be regarded as non-judicial in character, committal proceedings themselves traditionally constitute the first step in the curial process, possibly culminating in the presentation of the indictment and trial by jury" such that "[t]hey have the closest, if not an essential, connexion with an actual exercise of judicial power".

[20] Speaking to the second of those two distinct stages of the procedure traditionally applicable to offences tried on indictment, s 69(1) of the Judiciary Act provides:

"Indictable offences against the laws of the Commonwealth shall be prosecuted by indictment in the name of the Attorney-General of the Commonwealth or of such other person as the Governor-General appoints in that behalf."

[21] The language of s 69(1) of the Judiciary Act can be traced to the prescription in s 5 of the Australian Courts Act 1828 (Imp) that "all Crimes, Misdemeanors, and Offences ... shall be prosecuted by Information, in the Name of His Majesty's Attorney General, or other Officer duly appointed for such Purpose by the Governor". With reference to s 5, it was explained in Commonwealth Life Assurance Society Ltd v Smith that, "[w]hen an accused person [was] committed for trial, it [was] for the Attorney-General to consider whether the accused should be put on his trial and for what precise offence, and this he [did] by filing or refusing to file an indictment". Subject only to the proviso in s 6, which has no counterpart in the Judiciary Act, s 5 was held to confer on the Attorney-General for New South Wales and appointed officers an exclusive power not merely to determine whether or not to initiate a trial by filing an indictment but, where an indictment was filed, to control the conduct of the further prosecution of the matter. Whosoever was authorised to conduct the prosecution, conducted the prosecution in law "for the Crown".

[22] In Daley v The Queen, Green CJ succinctly stated the corresponding operation of s 69(1) of the Judiciary Act in terms that it "vests the right and duty to prosecute ... indictments exclusively in the Commonwealth Attorney-General or in appointed officers". The exclusive nature of the right and duty vested in the Attorney-General or in an appointed officer by s 69(1) of the Judiciary Act is confirmed by the carve-out from its operation by s 69(2A), which provides:

"Nothing in subsection (1):

(a) affects the power of the Director of Public Prosecutions to prosecute by indictment in his or her official name; or

(b) affects, or shall be taken to have affected, the power of a Special Prosecutor to prosecute by indictment in his or her own name;

indictable offences against the laws of the Commonwealth."

Section 69(2A)(a) alludes to the power conferred on the Director of Public Prosecutions by s 9(1) of the Director of Public Prosecutions Act 1983 (Cth) to prosecute offences against Commonwealth laws "by indictment in his or her official name" or "in any other manner". The power to prosecute "in any other manner" enables the Director of Public Prosecutions to prosecute in the name of "the Queen" and, in an appropriate case, to prosecute in the name of "the Attorney-General". Section 69(2A)(b) alludes to the substantially identical power conferred on a Special Prosecutor by s 8(1) of the Special Prosecutors Act 1982 (Cth).

[23] The exclusive nature of the right and duty vested in the Attorney-General or in an appointed officer by s 69(1) of the Judiciary Act is also recognised in s 13 of the Crimes Act. Where it is applicable, s 13(a) goes no further than to allow a person other than the Attorney-General or an appointed officer to institute proceedings for the commitment for trial of a person in respect of an indictable offence against a law of the Commonwealth. Where a person is committed for trial, filing or refusing to file any subsequent indictment is outside the scope of the capacity to prosecute conferred by s 13(a) of the Crimes Act and solely within the province of the Attorney-General or appointed officer under s 69(1) of the Judiciary Act subject only to the carve-out in s 69(2A) of the Judiciary Act. So much was accepted by the plaintiff. [footnotes omitted]

39    Although a person can commence a private prosecution for an indictable offence, that procedure involves commencing proceedings in the Magistrates Court. The Commonwealth Director of Public Prosecutions can at any time take over the proceedings, and can discontinue them: Director of Public Prosecutions Act 1983 (Cth) s 9(5). Importantly, once committed for trial, an indictment must be filed which can only be done by the Attorney-General or such other person as the Governor-General appoints in that behalf, relevantly, the Commonwealth Director.

40    The applicant’s submission that Taylor only applies to the offence there under consideration and in respect to other offences it is “statute barred” is incorrect. The absence of authority to bring a private prosecution for an indictable offence is a complete answer to the applicant’s only claim. The applicant’s reliance on Annetts does not advance his argument. The passage relied on concerned natural justice, not who had authority to bring a private prosecution. That the offence provision does not state that a prosecution must have the consent of the Attorney-General, as in Taylor, is irrelevant as s 69 of the Judiciary Act vests the right and duty to prosecute indictments exclusively in the Commonwealth Attorney-General or in appointed officers, relevantly here the Commonwealth Director.

41    Finally, the applicant’s application which seeks an injunction under s 150.5 of the Criminal Code against the Victorian State Government to prevent them providing instructions in this matter necessarily falls away as these proceedings are fundamentally flawed. Leaving aside that AHPRA is the respondent not the Victorian Government, such injunction is dependent on establishing the criminal offence. No such basis therefore exists.

Conclusion

42    The respondent has established that the applicant has no reasonable prospect of successfully prosecuting this proceeding as against AHPRA. The proceeding also discloses no reasonable cause of action and is frivolous and vexatious. I am satisfied that this case is a matter in which it is appropriate to order it be summarily dismissed. If I had not so found, I would have ordered the proceedings be struck out without leave to replead.

43    The respondent submitted that in these circumstances that costs should follow the event in each proceedings, and that they should be on an indemnity basis. On two occasions the respondent, by letters dated 12 November 2020 and 18 November 2020 put the applicant on notice of what it contended were the defects in the proceedings, and invited the applicant to discontinue the proceedings by a nominated date on the basis that it would pay its own cost. The applicant did not respond to either letter. The issue was also raised with the applicant at the case management hearing held to list this matter. The respondent relied on the principles as summarised in Rana v Commonwealth [2013] FCA 189 (Rana) at [75]-[79] and submitted this case also bore factual similarity.

44    The principles in relation to the award of indemnity costs are well established. The Court has a broad discretion to order costs: s 43 FCA Act. Costs ordinarily follow the event and are awarded on a party–party basis unless there are particular or special circumstances which would warrant the Court making a special costs order, including an order that costs be assessed on an indemnity basis: Colgate-Palmolive Company v Cussons Pty Limited [1993] FCA 801; (1993) 46 FCR 225 (Colgate-Palmolive) at 232-234.

45    In Colgate-Palmolive at 233 the Court, having referred to the principles, provided examples of the circumstances which may warrant the exercise of the discretion to award indemnity costs which include: evidence of a particular misconduct that causes loss of time to the court and the other parties; the fact that the proceedings were commenced for some ulterior motive; the fact the proceedings were commenced in wilful disregard of known facts or clearly established law; the making of allegations that ought never to have been made, or the undue prolongation of a case by groundless contentions; an imprudent refusal of an offer to compromise; or an award of costs on an indemnity basis against a contemnor. The list was not intended to be exhaustive and nor are the categories of cases in which the discretion may be exercised to award indemnity costs closed.

46    I am mindful of the fact that the applicant is unrepresented. In Ogawa v The University of Melbourne (No 2) [2004] FCA 1275, Kenny J observed at [42]:

Generally speaking, courts are more reluctant to make orders for indemnity costs against litigants in person than against legally represented litigants, although, in an appropriate case, they will make such an order. In Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 at [13] Hodgson CJ in Eq observed:

… I accept that a court does have to make allowances for the position of litigants in person, and to try to ensure that such a litigant does not lose out because of lack of expertise; although there is a limit to what the Court can do in that regard, while still remaining an impartial determinant of a dispute. The Court may in those circumstances refrain from making orders against litigants in person for conduct that might be considered as justifying orders for costs against represented litigants. By the same token, litigants in person can cause great hardship and expense to other parties, through making allegations and claims that lawyers would recognise as allegations and claims that could not reasonably or even properly be made, and through making proceedings much longer and much more expensive than they would otherwise be, by not focusing accurately on the real issues in the case. Conduct of that nature by legally represented parties would often lead to orders for indemnity costs. Litigants in person may escape the consequence of indemnity costs, but I do not think that the circumstance that a party is a litigant in person is a ground for displacing the ordinary result that costs follow the event.

As a Full Court of this Court (constituted by O’Loughlin, Whitlam and Marshall JJ) observed in Bhagat v Global Custodians Ltd [2002] FCA 223 at [57], the Chief Judge did not say that litigants in person always escape the consequence of indemnity costs. Indeed, the Full Court in that case declined (at [60]) to interfere with the decision of the trial Judge to order indemnity costs against the unrepresented litigant.

47    There is strength in the respondent’s submission. The respondent raised with the applicant the matters on which it based its application. Having received no response it was required to bring these proceedings.

48    Accepting that the Court is generally more reluctant to order indemnity costs in respect to an unrepresented litigant, in the circumstances of this case, it is appropriate to do so. As observed in Rana at [79], this is not to punish the applicant but to compensate the respondent for the expenditure it has been subjected to in responding to these proceedings.

49    I grant the respondent’s interlocutory application for summary dismissal. The applicant is to pay the respondent’s costs on an indemnity basis.

Associate:

Dated:    31 March 2021