Kirby v Health Care Complaints Commission

1. [1]

   HER HONOUR: The plaintiff seeks a judicial review of a decision of Senior Member Britton (“the Senior Member”) of the New South Wales Civil and Administrative Tribunal NSW (“the Tribunal”) dated 3 July 2018.

2. [2]

   By amended summons filed 2 May 2019, the plaintiff seeks firstly, an extension of time to bring the amended summons pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”); secondly, an order restraining the Health Care Complaints Commission (“the Commission”) from maintaining and prosecuting disciplinary proceedings filed in the Tribunal on 3 July 2018; thirdly, an order preventing the Commission from taking any further steps in relation to the prosecution of the plaintiff; and finally, in the alternative to the first order, an order quashing the decision of the Commission dated 2 July 2018.

3. [3]

   The plaintiff is Dr David William Kirby. The defendant is the Commission. The parties relied upon a joint court book (Ex B).

4. [4]

   At the hearing of these proceedings, the plaintiff did not seek to rely on the matters in order [4] of the relief sought, nor did he press the amended grounds of judicial review relating to the judgment of the Senior Member of the Tribunal.

The legislative framework

1. [5]

   The plaintiff is a dentist and a registered health practitioner within the meaning of the s 4 of the Health Practitioner National Regulation Law (NSW) No 86a (“the National Law”).

2. [6]

   The Commission is a statutory body representing the Crown pursuant to s 3A of the Health Care Complaints Act 1993 (NSW).

3. [7]

   The functions of the Commission are set out in s 80 of the Health Care Complaints Act. Section 80 relevantly states:

4. [8]

   Section 3 of the Health Care Complaints Act provides that the primary object of the Act is to establish the Commission as an independent body for the purposes of receiving and assessing complaints under the Act, investigating and assessing those complaints and whether they should be prosecuted, and resolving or overseeing their resolution.

5. [9]

   In carrying out its functions, the Commission must have regard to the following principles:

6. [10]

   The Commission is empowered to refer complaints made against health practitioners to the Tribunal under s 145C(1)(a) of the National Law. It reads:

7. [11]

   Under s 145O of the National Law, the Commission is under a duty to refer a complaint to the Tribunal if it forms the opinion that the subject matter of the complaint, if proven, could justify the suspension or cancellation of the health practitioner’s registration. As the complaint against the plaintiff alleged professional misconduct, suspension or cancellation was available: see s 139E.

8. [12]

   Section 165H of the National Law provides that the Tribunal does not have to conduct an inquiry into a compliant if it is admitted, but that it must if the complaint is not. Pursuant to s 149 of the National Law, the Tribunal has powers upon finding the complaint proved, or in circumstances where the complaint is admitted in writing by the registered health practitioner. The powers that may be exercised by the Tribunal are set out at ss 149A to 149C of the National Law, and include the power to suspended or cancel the registered health practitioner’s registration.

9. [13]

   Division 10 of the National Law contains s 165B. It relevantly reads:

10. [14]

    Section 90B(1) of the Health Care Complaints Act confers functions on the director of the Commission, including determining whether a complaint is to be prosecuted before a disciplinary body. If the Commission’s Director of Proceedings determines that the Commission is going to prosecute a complaint, then he or she has the function of prosecuting that complaint under s 90B(1)(a1).

11. [15]

    Section 90B relevantly reads:

12. [16]

    Section 4 of the Health Care Complaints Act defines “disciplinary body'” as “a person or body (including a professional standards committee) established under [the National Law] that has the power to discipline a health practitioner or to suspend or cancel (by whatever means) the registration of a health practitioner”.

13. [17]

    By application dated 3 July 2018, the Director of Proceedings referred a complaint against the plaintiff (“the complaint”) to the Tribunal under s 145C(1)(a) of the National Law. The complaint alleged that the plaintiff had engaged in “unsatisfactory professional conduct” within the meaning of s 139(1)(a), (b) and (I) of the National Law, and that the nature of the unsatisfactory professional conduct amounted to “professional misconduct” within the meaning of s 139E of the National Law.

14. [18]

    The conduct alleged was that the plaintiff inappropriately prescribed Schedule 4 medications to one of his patients between February 2010 and August 2015, and that he failed to maintain appropriate infection control standards over a similar period.

15. [19]

    On 18 December 2015, the Dental Council suspended the plaintiff from practice following proceedings under s 150 of the National Law which were held on 11, 15 and 18 December 2015, and published written reasons.

16. [20]

    In January 2016, the plaintiff sought a review of the Dental Council’s decision pursuant to s 150A of the National Law.

17. [21]

    On 12 February 2016, following a review hearing under s 150A, the Dental Council lifted the plaintiff’s suspension and imposed conditions on his practice of dentistry, which remain in place to date.

18. [22]

    Between 21 December 2015 and 2 July 2018, the Commission conducted an investigation into the complaint.

19. [23]

    On 2 July 2018, the Commission commenced proceedings in the Occupational Division of the Tribunal pursuant to s 90B of the Health Care Complaints Act. The Commission sought orders pursuant to ss 149A, 149B, and/or 149C of the National Law.

20. [24]

    On 14 December 2018, the Senior Member heard the plaintiff’s application that the proceedings be stayed on the basis that they were an abuse of process.

21. [25]

    On 4 April 2019, the Senior Member dismissed the plaintiff’s application.

22. [26]

    The plaintiff’s application for judicial review in this Court is on the basis that the Tribunal does not have jurisdiction to hear the disciplinary proceedings pursuant to s 90B of the Health Care Complaints Act because the Tribunal is not a “disciplinary body” under s 4 of the Act.

23. [27]

    While the plaintiff seeks an extension of time, neither party made submissions on this topic. It may be because of the submissions made before me in Kirby v Health Care t/as Health Care Complaints Commission [2020] NSWSC 1133. If that is the case, I make the same order I did in that case granting an extension of time.

Judicial review generally

1. [28]

   This Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari, which includes jurisdiction to quash the ultimate determination of a court or tribunal, including the Commission, if that determination has been made on the basis of an error of law on the face of the record. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination: s 69 of the Supreme Court Act 1970 (NSW).

2. [29]

   The plaintiff submitted that by commencing the disciplinary proceedings before the Tribunal, the Director of Proceedings was acting ultra vires. As such, his actions are invalid and any further conduct in maintaining and prosecuting the disciplinary proceedings should be restrained.

3. [30]

   It is the plaintiff’s position that the Director of Proceedings lacks the power to prosecute the complaint against him before the Tribunal in accordance with s 90B(1)(a) of the Health Care Complaints Act. Under s 90B(1)(a1) of the Act, where the Commission refers a complaint to the Director of Proceedings, he or she may prosecute the complaint before a disciplinary body if he or she determines that it should be dealt with in that way. The plaintiff noted that the definition of “disciplinary body”, extracted earlier in this judgment, means a person or body established “under” the National Law that has the power to discipline a health practitioner or suspend his or her registration.

4. [31]

   The plaintiff submitted that the Tribunal is not “established under” the National Law, and is therefore not a “disciplinary body” for the purposes of the Health Care Complaints Act. As such, the key issue for the Court to determine is the proper interpretation of “disciplinary body” and in particular, the meaning of “established under” in s 4 of the Health Care Complaints Act.

5. [32]

   The plaintiff referred to SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 (“SZTAL”), where the plurality stated at [14]:

6. [33]

   In Davis v City North Infrastructure Pty Ltd [2012] 2 Qd R 103 (“Davis”), Applegarth J considered whether an entity was “established by government under an Act…” within the meaning of the Right to Information Act 2009 (Qld). At [38] to [39], Applegarth J found that the words:

7. [34]

   The plaintiff also referred to D.C. Pearce and R.S. Geades, Statutory Interpretation in Australia (LexisNexis, 8th ed, 2014) at [12.11]:

8. [35]

   The plaintiff submitted that the Tribunal is established under the Civil and Administrative Tribunal Act 2013 (NSW) (“the CAT Act”). The CAT Act provides explicitly for the establishment and constitution of the Tribunal, the establishment and constitution of the Occupational Division and the conferral of functions on the Occupational Division. The plaintiff also submitted that it is consistent with the context and purpose of the CAT Act that the Tribunal, including the Occupational Division, is established under the CAT Act.

9. [36]

   Section 7(1) of the CAT Act reads:

10. [37]

    Further, by s 16(1)(c) of the CAT Act, the Occupational Division, as one of the divisions of the Tribunal, was established “[o]n the establishment of the Tribunal”. Relevantly, it is the CAT Act which provides for the composition and functions of the Occupational Division under s 17 of the Act. Schedule 5 of the CAT Act is the Division Schedule for the Occupational Division. Clause 4(1) of Sch 5 states that the functions of the Tribunal in relation to the National Law, amongst other legislation, are allocated to the Occupational Division.

11. [38]

    Division 3 of Pt 4 of Sch 5 provides for the constitution of the Tribunal for proceedings involving the exercise of a Division function in relation to the National Law. In particular, cl 13 of Sch 5 provides:

12. [39]

    Section 165B of the National Law provides for the constitution of the Tribunal in respect of complaints referred to the Tribunal under the National law, or applications or appeals to the Tribunal under the National Law, or inquiries under the National Law, or the exercise of functions under ss 146D or 148G of the National Law. The National Law does not provide for the constitution of the Tribunal in respect of matters brought under the Health Care Complaints Act. In that respect, pursuant to the CAT Act, the List Manager is responsible to give directions concerning the constitution of the Tribunal: see cl 11(3)(b) of Sch 5 of the CAT Act.

13. [40]

    In these circumstances, the plaintiff submitted that by the ordinary and natural meaning of the text of the CAT Act, the Tribunal is “established” under that Act. The CAT Act is the source of the Tribunal’s existence, and provides for the constitution and function of the Occupational Division of the Tribunal in respect of matters brought under the Health Care Complaints Act.

14. [41]

    That the Tribunal, including the Occupational Division, is established under the CAT Act is consistent with the stated objects of the CAT Act. Section 3 of the CAT Act provides:

15. [42]

    The plaintiff also submitted that the Tribunal being “established” under the CAT Act is consistent with the purpose and object of the Act as identified in the second reading speech in the Legislative Assembly on 22 November 2012, during which Attorney General Greg Smith relevantly stated:

16. [43]

    Prior to the establishment of the Tribunal, disciplinary proceedings of health professionals were dealt with by individual tribunals specific to the relevant health profession, referred to above. Under Div 10 of Pt 8 of the National Law as at 31 December 2013, by s 165, tribunals were established for each of the health professions identified. For the dental profession, s 165 established the Dental Council of New South Wales.

17. [44]

    With the introduction of the CAT Act, each of the tribunals established under s 165 of the National Law was abolished on establishment day. Each current tribunal member of the tribunals established under s 165 of the National Law also ceased to hold office, and was appointed to the new office or position in the Tribunal in accordance with cl 5 of Schedule 4 of the CAT Act. That is, it was the CAT Act that described what was to be done to establish the Tribunal for the purposes of the National Law.

18. [45]

    Further, with the introduction of the Tribunal under the CAT Act, corresponding amendments were made to the Health Care Complaints Act and the National Law, among others, by the Civil and Administrative Legislation (Appeal and Amendment) Act 2013 No 95. The Act replaced references to tribunals previously established under s 165 of the National Law with references to the Tribunal.

19. [46]

    The plaintiff also submitted that the Civil and Administration Legislation (Repeal and Amendment) Act replaced Div 10 of Pt 8 of the National Law (including s 165 establishing tribunals for different health professionals) with Div 10 of Pt 8 of the National Law as it now appears. Notably, the heading of Div 10 of Pt 8 prior to the amendment was “Tribunals [NSW]” and Subdiv 1 was titled, “Establishment of Tribunals [NSW]”. In contrast, as a result of the Civil and Administration Legislation (Repeal and Amendment) Act, Div 10 of Pt 8 of the National Law is now titled, “Constitution and proceedings of Tribunal”, and there is no longer any subdivision referring to the “establishment” of any tribunal in the National Law.

20. [47]

    As such, the plaintiff submitted that it is clear from the context of these legislative amendments that the purpose was for the CAT Act to establish the Tribunal, while the powers and functions of the Tribunal were to be conferred by the subject-matter statutes.

21. [48]

    The plaintiff referred again to the second reading speech for the CAT Bill, where the Attorney General stated:

22. [49]

    The plaintiff submitted that those “consequential amendments” referred to the Civil and Administrative Tribunal Amendment Act and the Civil and Administrative Legislation (Repeal and Amendment) Act. As noted above, it was the Civil and Administrative Legislation (Repeal and Amendment) Act that introduced Div 10 of Pt 8 in its current form.

23. [50]

    Further, in Subdiv 6 of Pt 8, Div 3 of the National Law (which previously stipulated the powers of the various tribunals established under s 165 of the National Law), references to “a Tribunal” were replaced with “The Tribunal”. This conferred the power previously held by the various tribunals established under s 165 of the National Law onto the Tribunal established under the CAT Act. This is consistent with the National Law being a law conferring power on the Tribunal, as distinct from being a law establishing the Tribunal. The plaintiff submitted that this distinction between a statute that establishes a body, as contrasted with a statute that confers functions and powers on that body, is commonplace.

24. [51]

    As to the Health Care Complaints Act, the plaintiff submitted that its legislative history is consistent with the plaintiff’s position. The expression “disciplinary body” was first introduced in the Health Care Complaints Act by the Health Care Complaints Amendment (Special Commission of Inquiry) Act 2004 (NSW). That legislation introduced recommendations following the report from the Special Commission of Inquiry into Campbelltown and Camden Hospitals which had revealed a number of shortcomings in the previous investigation system of the Commission.

25. [52]

    As initially introduced under the Health Care Complaints Act, “disciplinary body” was defined as follows:

26. [53]

    With the introduction of the National Law, by the Health Practitioner Regulation Amendment Act 2010 (NSW), the definition of “disciplinary body” was amended to omit the reference to “a health registration Act” and insert instead, “the Health Practitioner Regulation National Law”. No further amendments have been made to the definition of “disciplinary body”. In particular, no amendments were made to the definition of “disciplinary body” in the Civil and Administrative Legislation (Repeal and Amendment) Act.

27. [54]

    The plaintiff noted that there are relevant bodies “established under” the National Law that satisfy the meaning of “disciplinary body” for the purposes of s 4 of the Health Care Complaints Act. The plaintiff’s interpretation that the Tribunal is established under the CAT Act and not the National Law is consistent with the purpose, object and function of the regime established by the Health Care Complaints Act and the National Law.

28. [55]

    These disciplinary bodies which the plaintiff says are “established under” the National Law are as follows:

    1. (1)

       a Council established under s 41B of the National Law, noting that a Council has powers to “discipline a health practitioner or to suspend or cancel (by whatever means) the registration of a health practitioner” under Pt 8, Div 3, Subdiv 7 of the National Law; and

    2. (2)

       a Professional Standards Committee established under s 169 of the National Law, noting that a Professional Standards Committee has powers to “discipline a health practitioner or to suspend or cancel (by whatever means) the registration of a health practitioner” under Pt 8, Div 3, Subdiv 3 of the National Law.

29. [56]

    The plaintiff further noted that if the Director of Proceedings had determined to prosecute the complaint before the Professional Standards Committee, it would be open to the Professional Standards Committee to make recommendations to the Tribunal under s 146D of the National Law, and in turn, the Tribunal would be empowered to make orders in the terms recommended by the Committee or otherwise.

30. [57]

    In circumstances where the Tribunal is not a “disciplinary body” for the purposes of the Health Care Complaints Act, the plaintiff submitted that the Director of Proceedings did not have power to prosecute the complaint against Dr Kirby in the Tribunal pursuant to s 90B(1)(a1) of the Health Care Complaints Act.

31. [58]

    In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (“Project Blue Sky”), the majority stated at [91]:

32. [59]

    The “necessary inquiry” as stated by the majority in Project Blue Sky at [93] is “whether the statutory purpose of the duty, when considered within the particular statutory scheme of which it forms part, would or would not be advanced by holding an exercise of decision-making power affected by breach of the duty to be invalid.”

33. [60]

    The plaintiff submitted that the functions of the Director of Proceedings are limited. The office was introduced in 2004 by the Health Legislation Amendment (Complaints) Act 2004 (NSW) as a result of the Special Commission of Inquiry. In the second reading speech on 26 October 2004, Morris Iemma stated:

34. [61]

    A practitioner who faces the prosecution of a complaint faces significant consequences in the nature of suspension or cancellation of their registration. The plaintiff submitted that the severity of those potential consequences weighs in favour of the conclusion that non-compliance with the statutory provision by the Director of Proceedings invalidates his acts. That is also consistent with the purpose of the Director of Proceedings as identified in the second reading speech, as an independent decision-maker introduced for the protection of practitioners. As such, his decision is invalid and the Director of Proceedings should be restrained from maintaining those proceedings before the Tribunal.

35. [62]

    The complaint against the plaintiff has been referred to the Tribunal, which is a body that has the power to discipline the plaintiff or to suspend or cancel his registration.

36. [63]

    It is the plaintiff’s case that because the Tribunal is “established” under the CAT Act, the Director of Proceedings has acted ultra vires and the defendant should be restrained from taking any further action in relation to the complaint.

37. [64]

    The Commission’s first submission was that in construing the meaning of “established” in the CAT Act, the Court is to have regard to the Interpretation Act 1987 (NSW). Section 33 of the Interpretation Act reads:

38. [65]

    The Commission submitted that the word “established” in the definition of disciplinary body at s 4 of the Health Care Complaints Act can and should be read interchangeably with the word “constituted”. In Davis at [18], the court refers to the Act under consideration as containing “no provisions that relate to the constitution or establishment of a body...”. In contrast, the National Law in these proceedings specifically constitutes the Tribunal for the purposes of dealing with a complaint referred to it by the Commission.

39. [66]

    The Commission also referred to the 2019 Macquarie Dictionary definition of “establish”, which reads:

40. [67]

    The dictionary definition of “constitute” reads:

41. [68]

    As such, the Commission submitted that “establish” and “constitute” are synonyms. The fact that the Tribunal at large is “established” under the CAT Act is not inconsistent with a version of the Tribunal being constituted/established as a disciplinary body under the National Law.

42. [69]

    The Commission submitted that having regard to the underlying purpose of the Health Care Complaints Act and the National Law relating to the management of registered health practitioners, the application of 33 of the Interpretation Act indicates that the legislature intended “established” to be read interchangeably with “constituted” in identifying the Tribunal as a disciplinary body for the purpose of prosecuting a complaint.

43. [70]

    In the alternative, the Commission submitted that the complaint is being prosecuted before a body that is constituted under the National Law and has the necessary functions and powers to deal with it. By enacting the definition of “disciplinary body” in s 4 of the Health Care Complaints Act, the legislature did not intend to impose as a necessary pre-condition that the disciplinary body be established (as opposed to constituted) under the National Law. As the complaint is before the body empowered to deal with it, there is no basis for the claim that the Commission acted ultra vires, and no basis to restrain the Commission from continuing to perform its statutory functions in prosecuting the complaint.

44. [71]

    The plaintiff’s application for judicial review is on the grounds that the Tribunal is not “established under” the National Law, and therefore cannot be said to be a “disciplinary body” for the purposes of prosecuting a complaint pursuant to s 90B(1) of the Health Care Complaints Act. If so, the Director of Proceedings acted ultra vires in prosecuting the complaint against the plaintiff in the Tribunal.

45. [72]

    The principles of statutory interpretation are well established and set out in detail earlier in this judgment. As the plurality stated in SZTAL at [14], the starting point is the text of the statute, with regard to its context and purpose. Under s 33 of the Interpretation Act, a construction that promotes the purpose or object underlying the Act is to be preferred.

46. [73]

    Section 7(1) of the CAT Act unambiguously “establishes” the Tribunal at large. However, it is also the case that the Tribunal, in exercising its function of conducting an inquiry into a complaint made against a health practitioner, is “constituted” under Div 10 of Pt 8 of the National Law. Division 10 of Pt 8 of the National Law, titled “Constitution and Proceedings of the Tribunal”, is set out earlier in this judgment. Relevantly, s 165B(1) specifies how the Tribunal is constituted for the purposes of hearing a complaint against a health practitioner.

47. [74]

    The words “establish” and “constitute” are functionally synonymous in that they both mean to make and create, or to set up or found. As such, in my view the plain meaning of the definition of “disciplinary body” under s 4 of the Health Care Complaints Act would not seem to exclude the Tribunal as a body established under, in the sense of having been constituted under, the National Law.

48. [75]

    In its submissions, the Commission also noted that the plaintiff’s interpretation of the legislation would have the effect of depriving parts of the National Law with meaning. For example, s 145C of the National Law governs the referral of complaints to the Tribunal by the Commission for the purposes of inquiring into complaints. Subdiv 6 of Div 3 of Pt 8 sets out the powers that may be exercised by the Tribunal when a complaint has been referred to and admitted or found proven under s 149 of the National Law.

49. [76]

    The Commission noted that the Tribunal can only inquire into, find proven and exercise disciplinary powers in relation to admitted complaints, or complaints to the Tribunal as a disciplinary body under s 4 of the Health Care Complaints Act. If the Tribunal is not a disciplinary body, then reference to the Tribunal in s 145C of the National Law, and the exercise of powers described in s 149, would have no work to do, as the Commission could not refer complaints to the Tribunal. This would be an absurd result.

50. [77]

    I agree that in ascertaining the meaning of a statutory provision, this Court is to prefer an interpretation that gives meaning to all words in the Act. In circumstances such as these, where two Acts interrelate, the interpretation of the National Law advanced by the plaintiff would deprive certain provisions of the Health Care Complaints Act of any work to do. The Commission itself is constituted under the Health Care Complaints Act, as recognised at s 138 of the National Law. In my view, the interpretation most consistent with the plain text, context and purpose of the Health Care Complaints Act and Pt 8 of the National Law is that the Tribunal is established, in the sense that it is constituted, under the National Law for the purposes of prosecuting a complaint pursuant to s 90B(1) of the Health Care Complaints Act. As such, in prosecuting the complaint within the Tribunal, the Director of Proceedings did not act ultra vires. The result is that the plaintiff’s application for judicial review fails.

51. [78]

    The parties have requested that cost be reserved.

    1. (1)

       The amended summons filed 2 May 2019 is dismissed.

    2. (2)

       Costs are reserved.