Quach v New South Wales Civil and Administrative Tribunal

1. [1]

   BASTEN JA: I agree with Sackville AJA.

2. [2]

   WARD JA: I agree with Sackville AJA.

3. [3]

   SACKVILLE AJA: The applicant (Practitioner) is a medical practitioner. He has filed two summonses pursuant to s 69 of the Supreme Court Act 1970 (NSW) (Supreme Court Act). The precise relief sought by the Practitioner, who is unrepresented, is not entirely clear. However, he challenges the entitlement of the New South Wales Civil and Administrative Tribunal (NCAT) to continue hearing two Notices of Complaint against him. He also challenges the imposition by NCAT of conditions on his registration. These have been imposed on an interlocutory basis pending NCAT’s final determination of the Notices of Complaint.

4. [4]

   The Practitioner claims have been opposed by the Health Care Complaints Commission (HCCC). I wish to record at the outset my appreciation for the careful, thorough and clear written submissions prepared by Ms Richardson, who appeared for the HCCC. Her submissions enabled the Court to understand the complex interaction of a range of statutes and transitional provisions, as well as the procedural history of the matter.

Background

1. [5]

   On 5 February 2015, NCAT gave judgment on two Notices of Complaint filed by the Health Care Complaints Commission (HCCC) against the Practitioner: Health Care Complaints Commission v Quach [2015] NSWCATOD 2 (NCAT Decision). The Practitioner was represented by counsel in the proceedings heard by NCAT, as was the HCCC. The hearing took place over 10 hearing days between September and December 2014.

2. [6]

   The First and Second Notices of Complaint between them contain 10 complaints concerning nine former patients of the Practitioner. The First Notice of Complaint was lodged in the Medical Tribunal on 18 June 2013. The Second Notice of Complaint was lodged in NCAT on 23 January 2014.

3. [7]

   NCAT was established on 1 January 2014: Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), ss 7(1), 7(2)(a). Prior to that date, complaints against medical practitioners could be referred to the Medical Tribunal of New South Wales (Medical Tribunal), established by s 165(1) of the National Law (as in force 31 December 2013) inserted by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW), Sch 1 [13]. The Medical Tribunal, constituted in accordance with the National Law, was required to deal with a matter referred to it: s 165(3). The Tribunal was to consist of a Chairperson or Deputy Chairperson, two medical practitioners and one lay person: s 165A(2) (as in force 31 December 2013). On 1 January 2014, the Medical Tribunal was abolished: CAT Act, Sch 1 Pt 2 cl 3; see also definitions of “existing health practitioner tribunal” and “existing tribunal” in Sch 1 Pt 2 cl 2(1).

4. [8]

   From 1 January 2014 complaints against medical practitioners are to be dealt with in accordance with Part 8 of the National Law, inserted by the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (NSW). Part 8 requires the HCCC, subject to certain qualifications to refer serious complaints to NCAT: National Law, s 145D(1). If NCAT finds the subject matter of a complaint against a medical practitioner to have been proved, it has extensive disciplinary powers, including the power to impose conditions on the practitioner’s registration: National Law Pt 8, Div 3, Subdiv 6. In general, the Tribunal when conducting an inquiry is to be constituted by a “senior judicial officer”, two health practitioners and one lay person: National Law s 165B(2).

5. [9]

   The First Notice of Complaint was filed with the Medical Tribunal before it was abolished and before NCAT was established. The Second Notice of Complaint was of course filed after the Medical Tribunal had been abolished and NCAT had been created. For that reason, it is necessary to refer later to the transitional provisions of the CAT Act.

6. [10]

   The NCAT Decision (at [3]) records that the parties agreed that the proceedings should be conducted in a two-stage process as follows:

7. [11]

   In conformity with this approach, the NCAT Decision concluded that each of the complaints against the Practitioner had been made out and that the conduct of the applicant constituted both unsatisfactory professional conduct and professional conduct. The proceedings were stood over until 10 April 2015 for further hearing, on which date NCAT proposes to hear evidence and submissions “concerning the stage 2 process”.

Interlocutory Orders

1. [12]

   On 19 December 2014, the last day of NCAT’s hearing on the Notices of Complaint, the Principal Member indicated to the legal representatives that NCAT would be assisted by submissions as to whether it had power to make interlocutory orders imposing conditions on the Practitioner’s right to practise pending the final decision. Both representatives agreed that NCAT had the power pursuant to s 165L(1) of the National Law (in its current form), which reads as follows:

2. [13]

   Section 149A(1)(b) permitted the Tribunal to “impose the conditions it considers appropriate on the practitioner’s registration”. NCAT then invited the legal representatives to make submissions as to what, if any, conditions should be imposed on the Practitioner. Submissions were duly made by reference to a number of conditions already imposed on the Practitioner’s registration, so that the debate was largely about whether additional or more stringent conditions should be imposed. Conditions had already been imposed on the Practitioner’s registration on three occasions:

3. [14]

   After NCAT heard argument on 19 December 2014, the Principal Member delivered an ex tempore judgment in which he specified the conditions that were to be imposed on an interlocutory basis. The Principal Member indicated that NCAT had decided that the practice conditions currently in place should be varied to reflect supervision at level 1 of “Medical Council policy”. He then set out the variations to the conditions already in place that NCAT proposed to make. The Principal Member stated that the new conditions were to apply unless and until varied by NCAT. He also said that if the parties wished to exercise liberty to apply, they could elect to have NCAT constituted by the Principal Member sitting alone “to save time”.

4. [15]

   The matter came before the Principal Member sitting alone on 9 January 2015. It is not entirely clear how the matter came to be relisted, but it appears that the HCCC may have made a request to relist it in order to settle the form of orders. The Practitioner represented himself and made submissions. After hearing argument, the Principal Member amended some of the conditions, for example by providing a more detailed (but not necessarily more onerous), regime for level 1 supervision of the Practitioner. The conditions as settled on 9 January 2015 were recorded in a Notice of Decision dated 11 February 2015 (Notice of Decision). No previous notice of decision had been issued by NCAT in relation to the conditions.

The Practitioner’s Summonses

1. [16]

   On 11 February 2015, the Practitioner filed a summons in the Common Law Division (First Summons). The First Summons, which was prepared without legal assistance, claims the following relief:

2. [17]

   The file numbers specified in Prayer 1 of the First Summons correspond with the file numbers of the Notices of Complaint dealt with in the NCAT Decision. The legislation identified in Prayer 1 is apparently intended to be a reference to the National Law, Sch 5A Pt 2 cl 4. Schedule 5A contains the savings and transitional provisions consequential on the repeal of certain legislation.

3. [18]

   The apparent object of Prayer 2 of the First Summons is to remove all conditions imposed on the Practitioner’s registration. The Practitioner’s primary contention is that NCAT lacked power to impose the conditions by way of interlocutory orders. Apart from his claim that the proceedings before NCAT are a “nullity”, the Practitioner says that the interlocutory orders constitute a “reprimand” which NCAT cannot impose by an interlocutory order (See s 165L(1) of the National Law reproduced at [12] above).

4. [19]

   On 4 March 2015, the Practitioner filed a notice of motion in Proceedings 48269 seeking an order removing the HCCC as the second respondent.

5. [20]

   The Practitioner filed a second summons on 25 February 2015 (Second Summons) seeking the following relief:

6. [21]

   The legislation referred to in the Prayer in the Second Summons is the Health Care Complaints Act 1993 (NSW) (HCC Act 1993). Schedule 4, Pt 4 cl 12(1) of the HCC Act 1993 contains a transitional provision consequential on the enactment of the Health Registration Legislation Amendment Act 2004 (NSW).

7. [22]

   On 25 February 2015, the Practitioner filed a notice of motion in Proceedings 67618. The motion seeks precisely the same relief as the Second Summons.

Procedural Matters

1. [23]

   The First Summons was filed in the Common Law Division but was removed into the Court of Appeal by an order of Garling J made pursuant to s 51(1)(b) of the Supreme Court Act. The removal order was made because proceedings by way of judicial review are assigned to the Court of Appeal: Supreme Court Act s 48(2). NCAT has filed a submitting appearance in Proceedings 48269.

2. [24]

   On 23 February 2015, Macfarlan JA dismissed a motion filed by the Practitioner in which he sought a stay of the NCAT proceedings and other relief. His Honour ordered that the costs of the motion be costs in the cause.

3. [25]

   On 4 March 2015, the Registrar ordered that the motion filed by the Practitioner seeking the removal of HCCC as a party be heard by this Court on 11 March 2015.

4. [26]

   The Practitioner filed the Second Summons in the Common Law Division, but by an order made on 4 March 2015 Proceedings 67618 were also removed into the Court of Appeal. On the same day, the Registrar directed that Proceedings 48269 and Proceedings 67618 be heard together on 11 March 2015.

A Preliminary Issue: Suppression Order

1. [27]

   The Practitioner applied at the outset of the hearing in this Court for an order suppressing his name. The application was treated by the Court as having been made pursuant to ss 7 and 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (Suppression Act). The Court refused the application and indicated that reasons would be given later.

2. [28]

   It appears that the Practitioner’s counsel applied under s 165M(4) of the National Law for his name to be suppressed in NCAT, but that application was rejected. In consequence, as the Practitioner accepted, the NCAT Decision has been available on the website that publishes NCAT’s decisions as a matter of course. He also accepted that the proceedings have received publicity in the media. In these circumstances it is not clear what point would be served by a suppression order.

3. [29]

   The Practitioner suggested that suppression of his name was necessary because findings had been made that he suffers from a mental illness. While his distress is understandable, that of itself is not a basis for suppressing his name in the circumstances of the present case. The Practitioner also suggested that publication would cause prejudice to his case. It was not explained how such prejudice could arise.

4. [30]

   For these reasons the Court decided that none of the grounds specified in s 8(1) of the Suppression Act had been made out.

Proper Parties

1. [31]

   The Practitioner seeks an order removing HCCC as a party to the First Summons. The Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 59.3(1) provides that judicial review proceedings are to be commenced by summons. Rule 59.3(2) states that if a decision to be reviewed arose in the course of a dispute between parties, each party who is interested in maintaining the decision must be joined as a respondent.

2. [32]

   As the Practitioner accepted, the HCCC is a party to the proceedings in NCAT. It is clearly interested in maintaining the NCAT Decision. Since NCAT quite properly has filed a submitting appearance, the HCCC is also the only contradictor in this Court. The HCCC is therefore a necessary party to the First Summons and the Practitioner’s motion to remove the HCCC as a party must be dismissed.

3. [33]

   The Second Summons joins only the HCCC as a respondent. NCAT also should have been joined as a respondent since it is the body responsible for the decision to be reviewed: UCPR, r 59.3(4). As will be seen, the Second Summons is to be dismissed for other reasons. If that was not the case, the Second Summons would be liable to be dismissed for want of a necessary party unless NCAT was joined as a respondent.

The Jurisdiction of NCAT

1. [34]

   As has been noted the Second Notice of Complaint was lodged with NCAT after NCAT had been established on 1 January 2014. NCAT accordingly has jurisdiction to deal with the Second Notice of Complaint without the need to consider any transitional provisions in the National Law or elsewhere.

2. [35]

   The First Notice of Complaint, however, was lodged with the Medical Tribunal prior to the establishment of NCAT. The Practitioner contends that as the complaint had been lodged with the Medical Tribunal and a directions hearing had been held by that Tribunal before 1 January 2014, NCAT has no power to hear and determine the First Notice of Complaint.

3. [36]

   This submission, which was not made to NCAT by the Practitioner’s counsel, overlooks the transitional provisions of the CAT Act. The CAT Act, Sch 1 Pt 2 cl 7 provides as follows:

4. [37]

   The following definitions in cl 6 are relevant to cl 7:

5. [38]

   The only hearing that took place before the Medical Tribunal in relation to the First Notice of Complaint was a directions hearing before the Chairperson. At that hearing, directions for a timetable were made by consent. Under the legislation then in force, the Chairperson was empowered to make decisions on questions of procedure without the concurrence of other members of the Tribunal: National Law, s 166(1).

6. [39]

   As has been recorded (at [7]), the National Law prior to 1 January 2014 provided that if a complaint was referred to the Medical Tribunal for the purpose of conducting an inquiry or hearing an appeal, the Tribunal was to consist of the Chairperson or Deputy Chairperson, two medical practitioners and a layperson: National Law, s 165A(2). Since the inquiry by the Medical Tribunal had not proceeded beyond the preliminary stages, the composition of the Tribunal for the purposes of the inquiry into the First Notice of Complaint against the Practitioner had not been decided before the Tribunal was abolished on 1 January 2014.

7. [40]

   In these circumstances, the proceedings in the Medical Tribunal were “unheard proceedings” within the CAT Act, Sch 1 Pt 2 cl 7(1). Accordingly the proceedings are taken to have been duly commenced in NCAT and may be heard and determined by NCAT. Schedule 1 Pt 2 cl 7(3)(a) has the effect that NCAT may exercise all the functions that the Medical Tribunal could exercise immediately before its abolition. Clause 7(3)(b) has the effect of applying any Act or other law that would have applied to the proceedings had the CAT Act not been enacted.

8. [41]

   For these reasons, insofar as the Practitioner contends that NCAT lacks jurisdiction to hear and determine the First Notice of Complaint, the contention must be rejected.

The Challenges to the Interlocutory Orders

1. [42]

   There is no substance to the Practitioner’s complaint that the conditions imposed by NCAT on his registration constitute a reprimand and thus fall outside the power to make interlocutory orders conferred by s 165L(1) of the National Law. There is a clear difference between a reprimand and the conditions imposed by NCAT for the protection of the public.

2. [43]

   Nor is there any substance to the Practitioner’s complaint that s 165L(1) of the National Law could not support the interlocutory orders made by NCAT, insofar as they were based on evidence given in relation to the First Notice of Complaint. It is true that cl 7(3)(b) of the transitional provisions in the CAT Act may have required NCAT to apply the National Law as at 31 December 2013 and on that date s 165L was not incorporated in the National Law. But s 167E(2) of the National Law as in force on 31 December 2013 was in terms identical to s 165L(1). If NCAT’s reference to s 165L rather than s 167E was in error, the error was immaterial to the outcome.

3. [44]

   In his oral submissions, the Practitioner complained that NCAT had denied him procedural fairness in that no opportunity had been afforded to him to argue against the imposition of conditions on his registration pending the final determination. The transcript of 19 December 2014 shows that NCAT clearly indicated the course that was under consideration and invited submissions from both parties. The legal representatives were given the time they requested to obtain instructions and consider their position. Each side made their submissions, after which the Principal Member gave an ex tempore judgment. There was no denial of procedural fairness.

4. [45]

   The Practitioner’s submissions do not specifically complain about the actions of the Principal Member on 9 January 2015 in amending or modifying the interlocutory orders made on 19 December 2014 without reconvening NCAT as previously constituted. Ms Richardson, however, very fairly drew attention to the form of orders recorded in the Notice of Decision and to the absence of any provision in the National Law empowering a Principal Member, sitting alone, to impose or vary conditions on a medical practitioner’s registration. Ms Richardson pointed out that the parties had apparently consented to the procedure suggested by the Principal Member, but she accepted that the parties’ consent could not overcome a lack of power, at least where the orders themselves had not been made by consent. Ms Richardson also noted that s 166(1) of the National Law in its pre-2014 form empowered the Chairperson of the Tribunal to make decisions on a question of law, but she did not suggest that this provision, assuming it applied to the proceedings, authorised the course taken by the Principal Member.

5. [46]

   If the conditions imposed by NCAT were final orders and the Practitioner had no right of appeal in respect of them, it would be necessary to consider the consequences of the apparent irregularity in the making of the orders imposing the conditions. This may not be a straightforward task and was not the subject of detailed argument. In the present case, the question need not be pursued as there are powerful discretionary reasons why the Court should not grant relief to the Practitioner.

6. [47]

   First, the Practitioner’s counsel did not suggest to NCAT on 19 December 2014 that the Principal Member should not follow the course he proposed to take. Had the issue of power been raised, no doubt steps would have been taken to address the difficulty. Consent cannot cure a defect of power, but the approach taken on behalf of the Practitioner is a matter to be taken into account in determining whether any relief should be granted.

7. [48]

   Secondly, it seems inevitable that the interlocutory orders made by NCAT will be superseded by final orders once it concludes the second stage of the inquiry. Having regard to its findings on the Notices of Complaint, NCAT may or may not decide to impose the same conditions on the Practitioner’s registration. Since the second stage of the inquiry is to resume within a short time, any question of the validity of some or all of the interlocutory orders made by NCAT will shortly be rendered moot.

8. [49]

   Thirdly, once NCAT makes final orders, the Practitioner has an appeal as of right to the Supreme Court on a question of law and may appeal by leave on any other ground: CAT Act, Sch 5 Pt 6 cll 29(1)(d), 29(2)(b), 29(4)(b). The Practitioner also is entitled to appeal with the leave of the Court against an interlocutory decision of NCAT: Sch 5 Pt 6 cl 29(6)(a). (The imposition of conditions on the Practitioner’s registration, as recorded in NCAT’s Notice of Decision, would seem to be an “interlocutory decision” for the purposes of cl 29(6)(a): see sub-par (i) of the definition of “interlocutory decision” in CAT Act, s 4.)

9. [50]

   Fourthly, contrary to the apparent assumption of the Practitioner, an order setting aside the orders made by the Principal Member will not leave the Practitioner’s registration unconditional, but subject to the similar pre-existing conditions, which on the Practitioner’s argument, the Principal Member had no power to vary.

10. [51]

    Fifthly, it is a well-established principle that relief of the kind available under s 69 of the Supreme Court Act will not generally be granted if there is another equally effective and convenient remedy: NSW Breeding and Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales [2001] NSWSC 494; 53 NSWLR 559 at [16] and cases cited there. The Practitioner could have sought leave to appeal from the interlocutory orders made by NCAT. Perhaps more significantly, once final orders are made he will have a right of appeal on a question of law and will be able to seek leave to appeal from the final decision on any other ground. Since the interlocutory orders almost certainly will be superseded shortly, the Practitioner will have remedies available to him to correct any error of law that may affect NCAT’s final orders.

11. [52]

    For these reasons, insofar as the Practitioner seeks relief on the basis that NCAT lacked power to impose some or all of the conditions recorded in the Notice of Decision, I would decline to grant any such relief.

Conditions Imposed by the Medical Council

1. [53]

   The Practitioner’s written submissions challenge the 2012 decision by the delegates of the Medical Council to impose conditions on his registration. The submissions dispute the finding by the delegates that he was suffering from a mental impairment. Quite apart from any procedural issues and the delay in instituting a challenge, the Practitioner seeks impermissibly to canvass the merits of the delegates’ decision. Nor were the delegates party to these proceedings. An application for judicial review cannot be used to challenge the merits of a decision. The Practitioner’s claim for the relief identified in Prayer 2 of the Summons must be refused.

Another Transitional Provision

1. [54]

   The relief sought in Prayer 1 of the First Summons, insofar as it is based on Sch 5A Pt 2 cl 4 of the National Law, appears to be based on a misconception. That clause is a transitional provision consequential upon the repeal of the Medical Practice Act and its replacement by the National Law on 1 July 2010: see Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [7] (Basten JA, McColl JA and Sackville AJA agreeing). Clause 4 seems to have nothing to do with the proceedings in NCAT, since the Notices of Complaint were filed some time after the repeal of the Medical Practice Act.

Orders

1. [55]

   Both the First Summons and the Second Summons must be dismissed. For the sake of completeness, the Practitioner’s notices of motion filed on 4 March 2015 (in Proceedings 48269) and 25 February 2015 (in Proceedings 67618) should also be dismissed. The Practitioner must pay the HCCC’s costs of each Summons and each notice of motion.