[2024] NSWCA 79

Mohareb v Health Care Complaints Commission

By consent, the Court makes the following orders: 1. Set aside the orders (1) and (2) made by Justice Weinstein on 16 October 2023 in the proceedings below. 2. Declare that the review decision made by the Respondent on 25 November 2022 is invalid on the basis that the decision lacked a rational foundation in that it misunderstood the nature and function of the NSW Health Liability Panel, as being a body before which “formal proceedings” were underway at the time of the decision. 3. Order that the Respondent pay the Applicant’s costs below and in this Court. 4. The Summons seeking leave to appeal in this Court, filed 10 January 2024, is dismissed. 5. The Summons in the court below, filed 9 December 2022, is otherwise dismissed.

Cases cited

Mohareb v Healthcare Complaints Commission[2023] NSWSC 1224

Legislation cited

Health Care Complaints Act 1993 (NSW) § 27(1)(c)

Judgment

[1]
KIRK JA: I agree with Griffiths AJA.
[2]
GRIFFITHS AJA: It is appropriate that the Court explain why it is prepared to make orders by consent in this matter. The applicant, Mr Mohareb, filed a summons on 10 January 2024, seeking leave to appeal from orders and the judgment given by Weinstein J on 16 October 2023. His Honour’s reasons for judgment are reported as Mohareb v Healthcare Complaints Commission [2023] NSWSC 1224. His Honour made the following orders on that day:
[3]
In brief, his Honour upheld the notice of motion filed by the Health Care Complaints Commission to have summarily dismissed Mr Mohareb’s summons in the nature of judicial review against a decision dated 25 November 2022 by the Commission. That decision, which I will refer to as the “Review Decision”, related to a complaint which Mr Mohareb had made about the medical treatment that he had received at the Royal North Shore hospital after he was the victim of a serious assault.
[4]
The complaint was treated by the Commission as having two aspects. The relevant aspect for the purpose of this proceeding is the complaint that I have just described. The Commission explained, in its letter dated 25 November 2022, that it had made a decision under s 27(1)(c) of the Health Care Complaints Act 1993 (NSW) to not continue dealing with Mr Mohareb’s complaint on the basis that the matter was already under investigation by some other competent person or body or is the subject of legal proceedings. It is evident from the terms of that letter that the Commission, at that time, took the view that Mr Mohareb’s complaint regarding RNSH was being considered in formal proceedings already underway by a body called the New South Wales Health Liability Panel (the Panel).
[5]
The hearing of Mr Mohareb’s summons seeking leave to appeal was listed to be heard before Kirk JA and myself today. Shortly before the hearing commenced, the Commission proposed certain orders which would have had the effect of obviating the need to hear and determine Mr Mohareb’s application for leave to appeal. The HCCC proposed the following orders:
[6]
Mr Emmett, of senior counsel, explained that the Commission had only recently realised that the statements that it made in its letter dated 25 November 2022, regarding the Panel conducting a formal proceeding, which was already underway, were incorrect. On that basis, the Commission accepted that its Review Decision was invalid and of no effect, being tainted by a jurisdictional error.
[7]
After the proposed orders were discussed with the parties, including with Mr Mohareb who represented himself both here and in the proceeding before Weinstein J, the orders initially proposed by the Commission were varied. The parties indicated that, by consent, the Court should make the following orders:
[8]
In circumstances where the declaratory relief which is sought identifies the basis for the Commission’s acceptance that its decision dated 25 November 2022 is invalid in law, I consider that it is appropriate that those orders be made by consent.