Hastwell v Health Care Complaints Commission

1. [1]

   BASTEN JA: In August 2016 the applicant, Haydyn Gary Hastwell, made a complaint to the Medical Council of New South Wales regarding the conduct and performance of Dr Julian Parmegiani, consultant psychiatrist. The applicant had been referred to Dr Parmegiani for a medico-legal report which, no doubt if favourable, he hoped to deploy in a claim against his previous employer. He therefore had had a contractual relationship with Dr Parmegiani, for the provision of services, in the form of the report, but not as a patient undergoing treatment.

2. [2]

   The complaint was referred to the respondent, the Health Care Complaints Commission. In circumstances fully explained by Leeming JA, the Commission ceased dealing with the complaint. On 13 November 2018, two years and two days after the complaint was discontinued, the applicant filed a summons in the Common Law Division seeking judicial review of the decision to discontinue dealing with the complaint.

3. [3]

   The primary judge, Rothman J, dismissed the summons. [1] By summons filed on 24 August 2020 the applicant sought leave to appeal from that judgment.

4. [4]

   I agree with Leeming JA that the application for leave to appeal should be dismissed, and that the applicant must pay the Commission’s costs in this Court. I also agree with the reasons given by Leeming JA for that conclusion, given the way in which the matter was argued in this Court. However, there is a more fundamental doubt attending the availability of judicial review to a complainant whose complaint has been considered but not proceeded with.

Scope of jurisdiction to quash

1. [5]

   The Health Care Complaints Act 1993 (NSW), s 75, created a statutory authority, the Health Care Complaints Commission, on which the following functions were conferred:

2. [6]

   The function of determining whether a complaint should be prosecuted before a disciplinary body and prosecuting such a complaint are conferred upon an officer, the Director of Proceedings, appointed by the Commission as a member of its staff:

3. [7]

   There are various ways in which a complaint may be resolved, prosecution before a disciplinary tribunal being that which commands the most serious sanctions against a practitioner. Otherwise there are, for example, professional standards committees established under the Act, which can impose conditions on a practitioner’s registration, but not suspend or deregister.

4. [8]

   Under the Medical Practitioners Act 1938 (NSW), and its successor, the Medical Practice Act 1992 (NSW), a complainant could prosecute proceedings in the Medical Tribunal. That, it would appear, is no longer the case. The function of the Commission is not to “refer” complaints to the tribunal (now the Civil and Administrative Tribunal), but to prosecute disciplinary proceedings itself. Accordingly, a complainant whose complaint is discontinued is denied no “right” to pursue the matter further.

5. [9]

   Part 2 of the Health Care Complaints Act confers powers, sometimes expressed in mandatory form, on the Commission. For example, s 12(1) provides:

6. [10]

   Part 2, Div 4, deals with “assessment of complaints”; the purposes of an assessment are identified in s 20. No purpose there identified relates to satisfaction of any obligation to the complainant or obtaining any relief on behalf of the complainant. Section 22 imposes an obligation on the Commission to act within a time period, generally 60 days after receiving the complaint (unless further particulars are sought from the complainant); however, the purpose of the temporal constraint is primarily to promote the public interest, although that may not be entirely so. Whether a complainant could bring proceedings to ensure compliance with the temporal obligation does not arise in the present case.

7. [11]

   Although it was conceded by the Commission that it owed a duty of procedural fairness to the complainant, the basis of that duty was not identified. Generally speaking, such a duty is owed in circumstances where a body may exercise power adversely to the rights or interests of another person. The conferral of such a power will usually entail an obligation (express or implied) to allow the person an opportunity to be heard against the exercise of the power, and to be notified of material which might support such an adverse exercise of the power. However, that is not always the case: police are not required to provide procedural fairness before arresting a person or obtaining a search warrant with respect to another person’s premises. Furthermore, the complainant is not the object of the exercise of the functions imposed on the Commission: it is the practitioner the subject of the complainant who is the object of possible sanctions and who will usually be entitled to procedural fairness during the complaint-handling process.

8. [12]

   If a statute “confers power to destroy or prejudice a person’s rights or interests,” it is accepted that principles of natural justice will regulate the exercise of that power. [2] Those principles may be of varying content, but will only be excluded by “plain words of necessary intendment”. [3] However, it remains a question of statutory construction as to whether the precondition to the obligation arises in a particular case. It is by no means clear that such an obligation is owed to a complainant in relation to the handling of a complaint against a medical practitioner by the Commission.

9. [13]

   It is correct, as the applicant submitted, that the paramount consideration for the Commission is “the protection of the health and safety of the public”: Health Care Complaints Act, s 3(2). This provision identifies a public interest, not the interest of an individual complainant, and the Commission is given power to pursue such a goal even if the complainant does not wish to, for example, where any dispute between the complainant and the health practitioner has been resolved.

10. [14]

    There is no issue but that the Commission received the complaint from the Medical Council, commenced an assessment of the complaint, consulted the Medical Council as to its proposal not to investigate further, and advised the complainant of the outcome. It was entitled to take the final step on the basis that the subject-matter of the complaint was “trivial or does not warrant investigation or conciliation or the Commission dealing with it under Division 9”: s 27(1)(b). (Division 9 of Pt 2 provides for “an alternate and neutral process of resolving complaints that is independent of the investigative processes of the Commission”: s 58B(a).) The power of discontinuance is thus conferred in broad terms which depend upon the Commission making an evaluative judgment. That judgment is vested in a body which is the statutory authority responsible for maintaining standards of the health care system within the State. Arguably, it is no more subject to the supervisory jurisdiction of this Court than is the police force or a public prosecutor within their areas of operation. [4]

11. [15]

    The principles with respect to public prosecutions were addressed in Barton v The Queen, [5] which dealt with an attempt to review the filing by the Attorney-General of an ex officio indictment. In the course of their joint reasons, Gibbs ACJ and Mason J (with whom other members of the Court relevantly agreed) referred with approval to the statement in Reg v Prosser [6] that the Attorney-General’s power to stay proceedings or enter a nolle prosequi was unreviewable, [7] stating:

12. [16]

    In Maxwell v The Queen [9] Gaudron and Gummow JJ stated: [10]

13. [17]

    One rationale for that approach, namely that the integrity of the judicial process would be compromised if the courts were to decide who should be prosecuted and for what, [11] does not apply with respect to disciplinary proceedings. Further, it may be accepted that, where the statute imposes limitations or obligations, those may be enforced by way of orders in the nature of prohibition and mandamus. However, the fact that a “client”, which includes any person who has used or received “health services” from a health practitioner, may make a complaint about a health practitioner, does not create an obligation in the Commission to take any particular action on the basis of a complaint, nor to do more than identify in broad terms the reason why a particular step has, or has not, been taken. As further explained in the joint reasons in Barton: [12]

14. [18]

    These considerations engage the principled limitation as to the scope of the supervisory jurisdiction, when invoked to quash a decision. The principle is explained in Hot Holdings Pty Ltd v Creasy [13] in the following terms: [14]

15. [19]

    If the Health Care Complaints Act conferred any legally enforceable rights on a complainant, they were limited to receiving an acknowledgement that a “complaint” complying with the Act had been lodged, and notification of steps taken to deal with it. The Commission accepted the complaint and gave the applicant notice, in accordance with s 28(1) of the Health Care Complaints Act, of its decision to discontinue dealing with the complaint. It gave reasons for the decision pursuant to s 28(8)(b). There is no suggestion otherwise. Applying Hot Holdings in the context of the statutory scheme, the decision to discontinue dealing with the complaint was not reviewable on the grounds relied on by the applicant.

The Hardiman ground

1. [20]

   There was one further ground identified by the applicant as demonstrating error on the part of the primary judge. That was the acceptance by the judge of the course taken by the Commission in defending the proceedings before him. The adoption of an active role as contradictor was said to contravene the principle of neutrality of a tribunal the subject of judicial review, as set out in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman. [16] The observations in Hardiman were based on the concern that if a matter were to be remitted to the Tribunal for further consideration, the Tribunal’s impartiality would have been compromised by its role in resisting the judicial review proceedings. It does not follow that an error has occurred at a trial because a decision-maker adopts an active approach in defence of its procedures. It would, at the least, be necessary for the applicant to show (i) that objection was taken to the only defendant in the proceedings acting as a contradictor, (ii) error on the part of the trial judge in overruling the objection, and (iii) that the error gave rise to a miscarriage of justice. None of that was demonstrated in the present case.

2. [21]

   For these reasons, in addition to those given by Leeming JA, the Court should refuse leave to appeal.

3. [22]

   LEEMING JA: Mr Haydyn Gary Hastwell has sought leave to appeal from the judgment of the Supreme Court constituted by a judge in the Common Law Division dismissing his summons which sought judicial review of two decisions of the Health Care Complaints Commission (HCCC). Leave is required because, although Mr Hastwell submits (and I accept) that he is extremely distressed by and disappointed with the HCCC’s decisions, they do not amount to a matter involving a claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more within the meaning of s 101(2)(r) of the Supreme Court Act 1970 (NSW). Nonetheless, there was a concurrent hearing of Mr Hastwell’s application for leave and an appeal. Mr Hastwell supplied voluminous written submissions (substantially exceeding the length applicable to written submissions in support of an appeal) and had the opportunity of addressing the Court for the majority of a day. Ultimately, his speaking notes (which are 76 pages long) were provided to the Court and became MFI A.

4. [23]

   The two decisions of the HCCC were dated 28 November 2016 and 20 February 2017. The latter was a review of the earlier, pursuant to s 28(9) of the Health Care Complaints Act 1993 (NSW). The review was undertaken by the Commissioner. It confirmed the first decision of the Commission not to take any further steps to progress a complaint Mr Hastwell had lodged against Dr Julian Parmegiani, a psychiatrist who had prepared a medico-legal report for Mr Hastwell in connection with proceedings he had commenced against his former employer, then pending in the Australian Human Rights Commission.

5. [24]

   I agree with what Basten JA has written doubting the Supreme Court’s jurisdiction to entertain Mr Hastwell’s application. However, while it is a court’s “first duty” to consider its jurisdiction, this Court’s jurisdiction to hear and determine the appeal from the judgment of the Common Law Division is undoubted, and in the absence of a notice of contention or submissions on the point, it is appropriate to address Mr Hastwell’s proposed grounds of appeal on their merits. Notwithstanding the number of proposed grounds of appeal, and the length of his written submissions and indeed his summons seeking review, the underlying dispute may be stated quite concisely.

Mr Hastwell’s employment with Kott Gunning

1. [25]

   Mr Hastwell was at all material times a qualified lawyer. He had worked in Sydney in house for an insurer, and in a number of legal firms. Between September 2013 and April 2015 he worked for a law firm, Kott Gunning, in Perth, doing personal injury work for defendants. It appears that relations between Mr Hastwell and the firm became fraught towards the end of 2014, and he retained Harmers Workplace Lawyers. That firm lodged on his behalf a complaint of prohibited discrimination with the Australian Human Rights Commission on 24 March 2016. The complaint to the Commission attached a 17 page letter containing detailed allegations of conduct said to contravene the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth). It is not necessary to summarise those allegations, or the consequences they were alleged to have had for Mr Hastwell’s mental well-being, although it may be noted that he had been certified as unfit to return to work after 19 December 2014.

2. [26]

   Mr Hastwell’s employment came to an end in March or April 2015. (To be precise, by letters dated 26 March and 2 April 2015, employer and employee each maintained that the other had repudiated the contract of employment, and accepted the other’s repudiation. It is neither necessary nor possible in the course of resolving this appeal to express any view as to the true legal character of the conclusion of Mr Hastwell’s employment.)

3. [27]

   In the course of his work in personal injury litigation, Mr Hastwell had become familiar with the process of obtaining medico-legal reports for the purposes of litigation, and the content of those reports. Such a report was perceived necessary for his own proceedings in the Human Rights Commission. Accordingly, by letter dated 27 June 2016, Harmers Workplace Lawyers acting on behalf of Mr Hastwell retained Dr Parmegiani to provide an expert opinion by way of a written report on specified questions. The first was whether between September 2013 and the present, Mr Hastwell had suffered any form of psychological or psychiatric condition.

Dr Parmegiani’s report

1. [28]

   Dr Parmegiani saw Mr Hastwell for around an hour on 29 June 2016 and provided a medico-legal report to Harmers Workplace Lawyers of that date. It is that report that, after it was provided to Mr Hastwell, gave rise to the complaints to the HCCC which in turn give rise to this litigation.

2. [29]

   The report commences with a background history, which appears to be uncontroversial, and then over pp 3-5 records a history said to have been given by Mr Hastwell at the consultation. Mr Hastwell contends that many aspects of what Dr Parmegiani recorded were not what he told him. There was a brief summary of earlier medical and psychiatric assessments of Mr Hastwell, to which Mr Hastwell did not take objection. Pages 7-10 answer the specific questions in the letter of instruction, including a diagnosis of a “Delusional Disorder”. On its face, that diagnosis is substantially based on the history recounted to Dr Parmegiani at the consultation. That history included statements which are improbable. For example, Dr Parmegiani’s report states that Mr Hastwell “believed that Kott Gunning Lawyers paid male prostitutes to have sex with him, sell him drugs and keep him under surveillance”. Dr Parmegiani stated that “[i]t is possible that his allegations, however unlikely, are true”. However, he added that if no independent evidence confirming the allegations could be found, a diagnosis of Delusional Disorder remained the likely explanation for his current mental state.

3. [30]

   Dr Parmegiani purported to apply the diagnostic criteria of Delusional Disorder from the 5th edition of the Diagnostic & Statistical Manual of Mental Disorders published by the American Psychiatric Association, and stated that it was likely that Mr Hastwell’s employers had reacted negatively to his behaviour which in turn exacerbated his beliefs. The report stated that he was not receiving adequate psychiatric treatment, and that improvement could occur with anti-psychotic medication, but that it was unlikely that he would accept psychiatric treatment. Dr Parmegiani’s opinion was that Mr Hastwell had a poor prognosis and that legal proceedings were likely to exacerbate his mental state. The report stated that “[a]ny lack of success will be attributed to a conspiracy involving various parties, possibly his legal representatives, medical experts, barristers and judges”.

4. [31]

   Mr Hastwell received the report from his solicitors on 26 July 2016 (precisely how that occurred seems not to be disclosed in the evidence). He was extremely distressed by and dissatisfied with it. He took steps to obtain the file, which included Dr Parmegiani’s handwritten notes of the consultation, which were sent to his solicitors on 9 August 2016 and received by him shortly thereafter.

Mr Hastwell’s complaint

1. [32]

   Mr Hastwell made a detailed complaint to the executive officer of the Medical Council of New South Wales on 25 August 2016. The complaint was twelve pages with seven annexures. The annexures attached the report of Dr Parmegiani, his application to the Human Rights Commission, notes from other medical and psychological practitioners whom he had consulted, and Dr Parmegiani’s medical notes.

2. [33]

   The complaint itself sought a finding that Dr Parmegiani and the report he had written breached ethical standards, codes of conduct and good medical practice, and reimbursement of the $750 which had been paid to date. The complaint identifies 15 pieces of important or vital information which were critical to his claim and which had been discussed at the consultation. The complaint also identifies 22 matters which were misrepresented in Dr Parmegiani’s report, although no attempt was made to reconcile his denial of what was said with Dr Parmegiani’s notes, which were quite detailed.

3. [34]

   For example, Dr Parmegiani had recorded Mr Hastwell saying “they were monitoring me on Grindr” and “2 guys were paid by work to prostitute themselves to sleep with me to get anything on me”. Mr Hastwell accepted that Dr Parmegiani did not have a copy of his complaint to the Australian Human Rights Commission, which in this respect was in more equivocal terms, but nonetheless stated on p 13:

4. [35]

   The main difference is that Dr Parmegiani’s notes record Mr Hastwell speaking of that incident as a fact which occurred, while the complaint to the Australian Human Rights Commission described it as a well-founded suspicion.

5. [36]

   Some of the inaccuracies are relatively minor. For example, Mr Hastwell complained that when Dr Parmegiani recorded “[m]uch of his distress was focussed on being persecuted by his former employer, before and after he left work”, the word “before” should read “during”.

6. [37]

   It is neither necessary nor appropriate to summarise all aspects of the complaint.

The HCCC’s first decision

1. [38]

   On 28 November 2016, Ms Nada Fraser, a “Complaint Assessment Team Leader” within the HCCC, advised that no further action would be taken relating to Mr Hastwell’s complaint. The letter summarised the complaints made against Dr Parmegiani and the relief sought by Mr Hastwell, and advised that a copy of the complaint had been sent to Dr Parmegiani, whose response was taken into account in the Commission’s assessment. The letter stated that Dr Parmegiani did not consent to a copy of the response being provided to Mr Hastwell. However, the letter summarised the response made by Dr Parmegiani as follows:

2. [39]

   The response stated that the Commission was required to consult with the Medical Council of New South Wales and addressed Mr Hastwell’s concern that Mr Parmegiani had “close ties” to the Medical Council. It advised that Dr Parmegiani was a member of the Council, but that nonetheless “your complaint was assessed impartially by the Commission and the Council”.

3. [40]

   The letter gave the following reasons for deciding that no further action would be taken:

4. [41]

   The letter concluded with advice that Mr Hastwell had a right of review.

The HCCC’s second decision

1. [42]

   Mr Hastwell exercised his right of review, and the Commissioner responded by letter dated 20 February 2017. Save to note that he maintained that he should have been permitted to see Dr Parmegiani’s response, it is unnecessary to summarise Mr Hastwell’s letter. The Commissioner’s letter summarised Mr Hastwell’s submissions as follows:

2. [43]

   After stating that the Commission had reviewed all the documentation and decision making processes to date, it made the following findings:

3. [44]

   Thereafter, Mr Hastwell commenced proceedings in this Court, seeking judicial review of both decisions of the HCCC.

The legislative scheme

1. [45]

   The annual report for 2016-2017 of the Medical Council, which was in evidence before the primary judge, indicated that some 2,300 complaints were received in that year. No doubt the subject-matter of those complaints ranged from the trivial and frivolous to extremely serious and potentially life-threatening. The report understates the total number of complaints, insofar as the 2,300 do not include complaints made directly to the HCCC.

2. [46]

   The Health Care Complaints Act 1993 (NSW), s 3(1), establishes the Commission as an independent body for the purposes of:

3. [47]

   Mr Hastwell placed importance on s 3(2), which provides:

4. [48]

   Part 2 of the Act deals with complaints. There are broad definitions as to the subject matter of a complaint, who may make it and how a complaint is made in ss 7, 8 and 9. It is plain that Mr Hastwell made a complaint which accorded with those sections.

5. [49]

   The next phases of the statutory scheme involve liaising with registration authorities and professional councils, notification and withdrawal of complaints and assessment. Section 22 imposes an obligation upon the Commission to carry out its assessment of a complaint within 60 days after receiving it (or, where further particulars are required from the complainant, within 60 days after the date those particulars were to be provided). Section 19 provides that on the receipt of a complaint by the Commission, it is to be assessed, and s 20 provides:

6. [50]

   Division 2, dealing with liaising with registration authorities and professional councils, and Div 3, dealing with notification and withdrawal of complaints, precede Div 4 dealing with assessment. However, at least some of the provisions in Divs 2 and 3 presuppose the completion of the assessment of a complaint by the Commission. For example, s 16(1) provides that written notice of the making of a complaint, its nature and the identity of the complainant must be given to the person against whom a complaint is made, no later than 14 days after the Commission’s assessment of the complaint under Div 4.

7. [51]

   Whenever a complaint is made against or directly involves a health practitioner who is or was registered under the Health Practitioner Regulation National Law, the Commission must notify the appropriate professional council as soon as practicable after the complaint is made: s 10. However, separately from the above, s 12 provides as follows:

8. [52]

   The consequences of that consultation are identified in s 13. In particular, if either the Commission or the appropriate professional council is of the opinion that a complaint or part of it should be investigated, it must be investigated: s 13(1). Similarly, s 13(2), (2A) and (3) make provision for the circumstances when a complaint must be referred to a professional council, reopened or conciliated, depending upon the views of the Commission and the appropriate professional council.

9. [53]

   Returning to the assessment of complaints pursuant to Div 4, s 21A authorises the Commission to obtain information and documents if the Commission is of the opinion that they would assist in the assessment of a complaint.

10. [54]

    In the present case, the result of the Commission’s assessment of Mr Hastwell’s complaint was that the Commission declined to take further action. This occurred after a copy of his complaint had been provided to Dr Parmegiani, and the Commission had received his response. It is not clear on the face of the materials whether Dr Parmegiani’s response was made voluntarily or pursuant to s 21A (nothing turns on this). Shortly after Mr Hastwell lodged his complaint, a letter to him confirming its receipt stated that his complaint would now be assessed, and explained that the Commission might release a copy of the complaint to Dr Parmegiani and request his response.

11. [55]

    It is plain from s 20(1) that one outcome of the assessment of a complaint is that the Commission may decide to decline to entertain it any further (with the result that there would be no investigation or reference to another body or conciliation). Although it seems that the statute does not expressly confer power to take the course contemplated by s 20(1) to “decline to entertain the complaint”, that is the necessary consequence of the scheme. That conclusion is confirmed by s 27, which empowers the Commission to discontinue dealing with a complaint in some eight circumstances (s 27(1)) and then provides in s 27(2) that “[t]his section does not exhaust the circumstances in which the Commission may discontinue dealing with a complaint”. If in the course of dealing with a complaint after it has been assessed, there are multiple express bases on which the Commission may discontinue dealing with it, then it is plain that it must be open to the Commission to assess the complaint as not warranting taking any further steps.

12. [56]

    Section 28 obliges the Commission to give the parties to the complaint notice in writing of the action taken or decision made by the Commission following its assessment of the complaint. Much of that section deals with the form and timing of the notice to be given in circumstances where the Commission has decided to investigate a complaint, something inapplicable to the present facts. Section 28(8) provides:

13. [57]

    Section 28(9) provides that the Commission may review a decision made after assessing a complaint if requested to do so by the complainant, and must do so if the request is made within 28 days after the complainant is notified of the decision.

14. [58]

    The legislative scheme leaves some matters unstated, but that is not to suggest that there is any real doubt as to how the regime operated in the present case.

15. [59]

    Mr Hastwell exercised his right under s 28(9) to have the decision reviewed by the Commission. The result of the review was to confirm the decision to take no further action. The review by the Commissioner (as opposed to the officer who made the first decision) supersedes the original decision, and is the source of the matters of which Mr Hastwell complains. In particular, it is the second decision which prevents the steps from occurring of which Mr Hastwell complains, including further investigation of the complaint and potentially conciliation with Dr Parmegiani.

16. [60]

    Insofar as the Commission’s decision on the s 28(9) review affects Mr Hastwell’s rights, it being the operative decision determining his complaint made under s 7 of the Act, it may in principle be amenable to judicial review. Conversely, the earlier decision no longer affects Mr Hastwell’s rights.

17. [61]

    Secondly, it is not disputed that there is power on the part of the Commissioner to make the decision to take no further action on Mr Hastwell’s complaint. That turned upon an evaluative judgment, bearing in mind the matters of which Mr Hastwell complained, the materials (which were voluminous) provided by him in support of his complaint, Dr Parmegiani’s response and the applicable standards to which Dr Parmegiani was subject.

18. [62]

    Thirdly, in exercising its functions under the Act, the Commission was subject to a duty to accord procedural fairness to persons affected, including Mr Hastwell. Mr Hastwell complains that two aspects of the decision making denied him procedural fairness. The first relates to the fact that only latterly did he receive a copy of Dr Parmegiani’s response to his complaint, although it will be noted that its substance was reproduced in the Commission’s first decision. Secondly, although Mr Hastwell correctly eschews any submission that Dr Parmegiani was personally involved in the decision making, in his role as a member of the Medical Council, he complains that the process by which the Medical Council was consulted was less than transparent.

19. [63]

    Fourthly, turning to the challenge to the decision, as opposed to the process by which the decision was made, Mr Hastwell propounds a large number of grounds of judicial review, which shall in due course be addressed. However, it is best to turn immediately to what Mr Hastwell appeared to regard as the “core” of his complaint.

20. [64]

    Mr Hastwell contends that the medico-legal report provided by Dr Parmegiani was seriously defective. Mr Hastwell maintains that it was not “fit for purpose”, the purpose being to be provided to the other side and in due course read in proceedings before the Human Rights Commission or in the Federal Court of Australia. Mr Hastwell maintains that medical experts such as Dr Parmegiani, retained to provide a medico-legal report, must be taken to be aware of the essential legal requirements of such a report, deriving ultimately from s 79 of the Evidence Act 1995 (NSW) read with the common law.

21. [65]

    Mr Hastwell contends that the HCCC should have found that Dr Parmegiani had failed to adhere to the standard stated in s 79 of the Evidence Act.

22. [66]

    That was the most prominent submission made by Mr Hastwell orally in this Court. It departed somewhat from the gravamen of his complaint to the HCCC, which focussed upon what were said to be (a) an incorrect diagnosis of “Delusional Disorder”, (b) the serious omissions and misrepresentations in the report and (c) Dr Parmegiani’s action beyond his expertise as a psychiatrist, although all of those submissions were pressed. Mr Hastwell’s essential submission on this last point was that it was for the court, rather than Dr Parmegiani, to make findings of fact before any opinion as to his suffering from a Delusional Disorder could be made. Mr Hastwell complained that:

Proceedings in the Common Law Division

1. [67]

   By summons dated 4 September 2018, Mr Hastwell commenced proceedings seeking judicial review of both decisions. The application required an extension of time, and although the primary judge regarded the reasons for the delay as “less than satisfactory”, his Honour granted an extension of time to bring proceedings. In the absence of any challenge to that decision, it is unnecessary to say anything more about it.

2. [68]

   The amended summons on which Mr Hastwell moved identified 10 grounds of review, as follows:

3. [69]

   The primary judge dismissed the summons by judgment delivered on 12 June 2020: Hastwell v Health Care Complaints Commissioner [2020] NSWSC 728. His Honour stated that he regarded grounds 6 and 10 as relating to allegations as to the failures of the medical practitioner about whom the complaint was made, rather than to either of the decisions of the HCCC, and on that basis declined to deal with those grounds: at [58]. His Honour added that if those grounds were intended to impact upon either of the HCCC’s decisions, they would not raise issues within the scope of judicial review, but rather seek to argue the merits of the assessment. Otherwise, the primary judge addressed each of the remaining eight grounds in turn, finding that none was established.

4. [70]

   Mr Hastwell’s “Updated Draft Notice of Appeal” filed on 23 November 2020 reiterates the 10 grounds of his amended summons, all of which were dismissed by the primary judge, alleging that the primary judge erred in failing to uphold each ground. I mean to convey no criticism of Mr Hastwell in taking that course; very commonly, the issues on an appeal by way of rehearing from a judgment on an application for judicial review ultimately resolve to the same issues determined at first instance.

5. [71]

   Mr Hastwell added two further grounds, grounds “A” and “B”, which fall into a different category. Proposed ground A, which was said to comprise errors of law and fact concerning the whole of the judgment, maintained that in five respects, the primary judge misapplied the Act. These subgrounds focussed upon s 3(2), concerning the paramount consideration being the health and safety of the public. Mr Hastwell contended that:

   1. (1)

      first, s 3(2) caused the Commission to be subject to an obligation to promote and maintain professional standards, as required by s 3A(5)(a), and to ensure “competency, ethicacy and training”;

   2. (2)

      secondly, there was error in relation to an improper construction of s 3(1)(d) concerning the “resolving or overseeing the resolution of complaints”;

   3. (3)

      thirdly, there was error of law by “failing to properly apply ss 9, 20 and 20A of the HCCC Act in that assessments are objective not subjective because professional medico-legal standards are themselves objective not subjective”;

   4. (4)

      fourthly, there was error in relation to s 27 of the Act, in that terminating a complaint relates to “frivolous, vexatious, unmeritorious complaints of which [Mr Hastwell’s] complaint is not”; and

   5. (5)

      fifthly, there was error on the basis that a medico-legal report must be fit for purpose by adhering to “medico-legal evidentiary rules and codes of practice, most notably s 79 of the Evidence Act” which were to be applied in assessing whether a report was fit for purpose as a piece of evidence.

6. [72]

   Proposed ground B asserted that there was error by the primary judge in failing to find that the HCCC had not exercised its powers as a tribunal in conformity with the principle recognised in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13, because the HCCC contested the case for judicial review and thereby became a protagonist risking impartiality which it was expected to maintain in the complaints process.

Consideration and resolution of the grounds of appeal

1. [73]

   It is most convenient first to address those grounds which go to procedural fairness and the constitution of the proceedings; secondly, to address the remaining substantive submissions made by Mr Hastwell; thirdly, to resolve the proposed grounds of appeal and fourthly to make orders.

2. [74]

   Proposed ground B makes a complaint which Mr Hastwell candidly accepted had not been raised before the primary judge. Ordinarily, this Court would not grant leave to raise a point of law which had not been raised before the primary judge. However, the Commission is only in an attenuated sense an adjudicative tribunal to which the principles in Hardiman’s case apply. As Ms Tronson, who appeared for the HCCC in this Court and at first instance, submitted, the Commission regularly undertakes the role of prosecuting proceedings where that is appropriate in accordance with the Act (see for example s 90B authorising the Director of Proceedings (an officer of the Commission) to determine whether a complaint should be prosecuted before a disciplinary body and, if so, whether the Commission should prosecute that complaint). In its role in the present case, the Commission exercised a gatekeeper function summarised in s 20 of the Act. Still further, if the Commission were not to appear in response to Mr Hastwell’s proceedings for judicial review, who was to be the contradictor? Mr Hastwell did not identify any proper contradictor.

3. [75]

   For all of those reasons, I would refuse leave to appeal on the basis of ground B.

4. [76]

   In order to address grounds 1 and 5, which allege a denial of procedural fairness by the HCCC in failing to allow Mr Hastwell to see or reply to Dr Parmegiani’s response, and apprehended bias based on the fact that Dr Parmegiani was a member of the Medical Council of New South Wales, the body consulted in the course of assessing his complaint, it is necessary to say something more about the (uncontroversial) facts. Mr Hastwell did in fact receive Dr Parmegiani’s response. That only occurred after the completion of decision-making by the HCCC. However, the substance of that response had previously been conveyed to him, and I did not understand Mr Hastwell to complain that in essence the summary was inaccurate. This matter was addressed expressly in para (iii) of the Commissioner’s decision of 20 February 2017.

5. [77]

   Mr Hastwell complains that the process that was adopted was not as transparent as it might have been, had Dr Parmegiani’s actual response been conveyed to him, and I understood him to indicate that he could see no reason why that had not occurred. But the question is whether what was done sufficiently complied with the obligation to accord procedural fairness before resolving Mr Hastwell’s complaint. It is to be borne in mind that the legislation imposes time limits upon the Commission for completing its assessment, that the Commission receives dozens of complaints most weeks, and that a medical practitioner against whom a complaint is made also has important rights. Further, as the primary judge noted at [59], it is the medical practitioner who is at risk of adverse findings by the process activated by a complainant; the legislation is not directed to the possibility of making adverse findings against a complainant.

6. [78]

   The primary judge considered that any unfairness in Mr Hastwell not seeing Dr Parmegiani’s response was overcome by his capacity to respond to the issues raised in the report for the purposes of the review. His Honour saw no basis for setting aside the review decision on the basis that it was procedurally unfair. Nothing has been advanced by Mr Hastwell to cast doubt upon that conclusion.

7. [79]

   The Commission adduced evidence, based on the documents brought into existence in November 2016 responding to Mr Hastwell’s complaint, concerning the role of the Medical Council and its member, Dr Parmegiani. An internal email within the Medical Council dated 10 November 2016, referred to the consultation process required by the Act and its application in connection with Mr Hastwell’s complaint. The email stated:

8. [80]

   One of the assessment sheets was attached to the form of the email tendered. It stated, in handwriting, “Note: provider is a Council member” and summarised Mr Hastwell’s complaint in a way which was not criticised by Mr Hastwell.

9. [81]

   Those documents disclose an awareness of the statutory regime and the difficulties that would arise when, inevitably, complaints were made against members of the Medical Council. There is no reason to doubt that what was stated in the email occurred. Indeed, Mr Hastwell made it clear, commendably, that he did not suggest that Dr Parmegiani had had any role in the consultation process. Once again, the gravamen of his complaint was that even with the evidence adduced by the Commission in this litigation, it was still less than transparent how the consultation took place.

10. [82]

    I agree with Mr Hastwell that what has been disclosed is less than a complete account of what occurred. But the only issue is whether the resolution of Mr Hastwell’s complaint took place in a way that is vitiated on the basis of an apprehension of bias. I cannot see that there is any substance to this ground. The evidence discloses (and Mr Hastwell accepts) that Dr Parmegiani had no role in the consultation process. The reasoning of the primary judge reached the same conclusion. There is no basis for a grant of leave in respect of this ground.

Mr Hastwell’s main submissions

1. [83]

   Despite this Court’s request that Mr Hastwell attend to the deficiencies he alleged accompanied the Commission’s second and operative decision, the letter of the Commissioner dated 20 February 2017, Mr Hastwell did not, in oral address, do so. Looking at the matter independently, it is difficult to identify any judicially reviewable error in what occurred. Although Mr Hastwell is upset and dissatisfied with the medico-legal report, it is, on its face, the expression of qualified psychiatric opinion, based on the history and documents provided to Dr Parmegiani and addressing the specific questions asked by Mr Hastwell’s solicitors (who in turn were acting on his behalf). There is no reason to doubt that the Commissioner was entitled to take the view she did, which was that no further steps should be taken.

2. [84]

   As earlier noted, Mr Hastwell’s core submission in this Court was focussed upon his complaint that Dr Parmegiani’s report was not “fit for purpose” and did not adhere to standards required of a medico-legal expert’s report:

3. [85]

   I cannot accept that submission, for these reasons.

4. [86]

   First, Mr Hastwell said, repeatedly, in this Court, that Dr Parmegiani’s report was prepared for the purposes of a mediated settlement in the Australian Human Rights Commission. The rules of evidence did not apply in the Commission even in more formal hearings, and certainly not in a mediation.

5. [87]

   Secondly, the legal requirements of expert opinion evidence applicable to proceedings in a court do not fall within the complaints handling regime established by the Act. Medico-legal reports which do not, in some or indeed all respects, comply with the obligations of expert evidence, are produced every day, and are commonly the subject of objection and rejection by courts when sought to be tendered. There is nothing in the scheme of the Act to suggest that the legal questions of admissibility have any bearing upon the processes, which are to be exercised with the protection of the health and safety of the public as the paramount consideration.

6. [88]

   Thirdly, Dr Parmegiani’s report was addressed to Mr Hastwell’s solicitors. His solicitors were well-qualified to assess whether or not the report was likely to be admissible if and when it were tendered in a court of law. It is not uncommon for a firm of solicitors to draw attention to matters which should be included in a report in order to comply with the rules of evidence. Whether or not that occurred in the present case is not disclosed by the evidence. Looking at the matter independently, there is nothing on the face of Dr Parmegiani’s report which suggests that there is material non-compliance with the rules of evidence.

7. [89]

   Fourthly, Mr Hastwell maintains that the report “usurped” the role of the court in making findings of fact, amounting to “trial by doctor”. But Dr Parmegiani was obliged to give his opinion, and obliged to base it, in part, upon the history recounted to him by Mr Hastwell. It may be, as Mr Hastwell contends, that aspects or nuances of what Mr Hastwell said were not accurately recorded by Dr Parmegiani. There is no way of determining this. Nor does it matter. Even if there are errors, there is nothing to which Mr Hastwell pointed which comes close to an allegation warranting further investigation by the Commission.

8. [90]

   Fifthly, a separate, prominent, theme in Mr Hastwell’s submissions was that Dr Parmegiani had erred in failing to apply the criteria for his diagnosis, and had made other material errors of fact in his report. I mean no disrespect to Mr Hastwell, but much of this submission amounted to his assertion. In so far as Mr Hastwell maintains that he had said things, or not said things, at the consultation on 29 June 2016, the Court has little to go on aside from his assertion, and the notes made by Dr Parmegiani at the time. No attempt was made by Mr Hastwell to incorporate the contemporaneous handwritten notes with his submissions. That is not to say that that course would ultimately assist, in circumstances where it was necessary, in order to succeed, for Mr Hastwell to establish judicially reviewable error. The primary judge observed that much in Mr Hastwell’s submissions amounted to seeking to vindicate his dissatisfaction with the merits of the outcome of the complaints process. But the only question in this Court, both at first instance and on appeal, is whether the decision not to proceed with Mr Hastwell’s complaint is vitiated by judicially reviewable error.

9. [91]

   Sixthly, while Mr Hastwell maintains that Dr Parmegiani made an incorrect diagnosis even on the basis of the facts as found by him, whether that is so is not established. But let it be assumed, favourably to Mr Hastwell, that a psychiatrist should not have diagnosed Delusional Disorder. Merely because a medical practitioner makes an incorrect diagnosis does not without more mean that it is not open to the HCCC to decline to deal with a complaint. The nature of medico-legal reports is that not uncommonly different practitioners reach different diagnoses in respect of the same patient.

10. [92]

    For those reasons, it was open to the Commission to take the course it did. Proposed grounds 2, 3, 8 and 9 are not made out. Mr Hastwell has not established that the primary judge erred in not finding that the HCCC failed to give proper, genuine consideration to the merits of the complaint or failed to identify the correct issue. Nor has Mr Hastwell established that the primary judge erred by failing to apply the tests of legal unreasonableness or irrationality and illogicality in determining whether the HCCC acted unreasonably, ultra vires or irrationally in its assessment of the complaint.

11. [93]

    Insofar as Mr Hastwell relies on s 3(2), that provision identifies a purpose. It does not (contrary to proposed grounds A and 4) directly constrain power or give rise to mandatory relevant considerations or other grounds of judicially reviewable error (contrary to proposed ground 7). Proposed grounds 6 and 10 deal with the factual matters in Dr Parmegiani’s report. For the reasons given above, there is no basis for a grant of leave in relation to those grounds.

12. [94]

    It follows that, Mr Hastwell having enjoyed a full hearing on all of the proposed grounds of appeal, none enjoys prospects of success sufficient to warrant a grant of leave. I propose that the summons seeking leave to appeal be dismissed with costs.

13. [95]

    WHITE JA: I agree with Leeming JA.