Awad v Health Care Complaints Commission - [2006] NSWSC 698

No judgment structure available for this case.

CITATION: AWAD v. HEALTH CARE COMPLAINTS COMMISSION & ANOR [2006] NSWSC 698

HEARING DATE(S): Thursday 1 June 2006

JUDGMENT DATE :
19 July 2006

JURISDICTION: Administrative Law

JUDGMENT OF: Hall J at 1

DECISION: Amended summons dismissed. Unless the plaintiff wishes to argue to the contrary by lodging written submissions with my associate within 14 days, I propose to order that the costs should follow the event in accordance with UCPR 2005, Part 42.1. Subject to that proviso, I order the plaintiff to pay the defendant's costs of the proceedings.

CATCHWORDS: Whether a purported complaint under the Health Care Complaints Act 1993 (NSW) was a complaint under the Act - if so, whether it was verified as required by former s.23(3) prior to that provision being omitted by the 2004 amending legislation - the meaning of the phrase "verifies the complaint" - what constitutes "verification" - whether breach of the requirement to verify a complaint constituted jurisdictional error invalidating the investigation of the complaint - the decision to prosecute the complaint before the Pharmacy Board and the decision to refer the complaint to the Pharmacy Board - the extent of the retrospective operation of the 2004 amending Act expressed to apply to "a complaint whether made on or after the commencement of the amendment" and whether the amendment applied to a complaint already investigated prior to the amendment

LEGISLATION CITED: Health Care Complaints Act 1993 (NSW)
Pharmacy Act 1964 (NSW)
Health Legislation Amendment (Complaints) Act 2004

CASES CITED: Azed Developments Pty. Limited v. Frederick & Co. Limited (In liq.) (1994) 14 ACSR 54
Besser Industries (NT) Pty. Limited v. Steelcon Constructions Pty. Limited (1995) 129 ALR 308
re Power (1992) 35 FCR 133
George v. Rockett (1990) 170 CLR 104
SAAP v. Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 1009
Project Blue Sky Inc. v. Australian Broadcasting Authority (1998) 194 CLR 355
NAHV (2003) 129 FCR 214
Commission for Railways (NSW) v. Agalianos (1955) 92 CLR 390

PARTIES: AWAD, Victor Andrew v. HEALTH CARE COMPLAINTS COMMISSION & ANOR

FILE NUMBER(S): SC No. 30090 of 2005

COUNSEL: Plaintiff: A. Katzmann, SC/M. Lynch/B.D. O'Donnell
Defendant: B. Walker, SC/G. Furness/C. Lenehan

SOLICITORS: Plaintiff: J.R. Lawyers
Defendant: Health Care Complaints Commission

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

HALL, J.

WEDNESDAY 19 JULY 2006

No. 30090 of 2005

VICTOR ANDREW AWAD v. HEALTH CARE COMPLAINTS COMMISSION & ANOR

JUDGMENT

1 HIS HONOUR: The plaintiff seeks, by amended summons dated 1 June 2006, declaratory and other relief including an order in the nature of certiorari quashing investigations by the defendant, the Health Care Complaints Commission (“HCCC”), into alleged conduct of the plaintiff. The investigation referred to in prayer 2 of the amended summons was said to have been commenced by statutory declarations dated 12 March and/or 1 July 2003 lodged with the HCCC by a Detective Senior Constable of police.

2 A submitting appearance was entered on behalf of the second defendant, the Pharmacy Board of New South Wales.

3 During the course of oral submissions, Ms. Katzmann, SC., on behalf of the plaintiff, clarified that the order in the nature of certiorari was sought in order to quash, firstly, the decision of the HCCC to prosecute a complaint before the Pharmacy Board against the plaintiff and, secondly, the decision of the HCCC to refer the complaint to the Pharmacy Board with a recommendation for disciplinary action (transcript, 1 June 2006, p.1). It was also contended that “the HCCC has no power to prosecute the Awad complaint before the Pharmacy Board until or unless it has engaged in a valid investigation, which, in our submission, it has not”. An order was also sought “preventing the HCCC from prosecuting the complaint before the Pharmacy Board until it conducted a valid investigation” (transcript pp.3-4).

4 There is no reference in the Health Care Complaints Act 1993 (HCC Act) to the making of a “report” on investigations as the result or outcome of an investigation under the HCC Act. Section 38(1) refers to “the findings of an investigation”. However, I accept that the decision or decisions referred to in the preceding paragraph are amenable to certiorari if the requisite grounds for relief of that nature are established.

5 The result of an investigation into a health practitioner may be a decision or determination to undertake one or more of the courses of action referred to in s.39(1)(a) to (f). Section 39(2), however, provides that the HCCC must consult with the appropriate registration authority before “deciding” what action to take.

6 A decision by the HCCC, as Mr. Walker, SC., who appeared on its behalf, observed, is to be regarded as a provisional one as s.40 requires the HCCC at the end of an investigation to inform the health practitioner concerned of the grounds for its proposed action under s.39(1) and to give the practitioner an opportunity to make submissions.

7 Mr. Walker stated that if the plaintiff made good the contentions as to the asserted invalidity, then the HCCC did not wish to put anything against what Ms. Katzmann had argued in relation to the availability of the remedy sought. In so saying, he drew attention to what was said in the joint judgment in Ainsworth v. Criminal Justice Commission (1991-1992) 174 CLR 564 at 580 (final paragraph).

8 I have also had regard to the observations made by the High Court concerning the scope of certiorari in the joint judgment in Hot Holdings Pty. Limited v. Creasy (1995-1996) 189 CLR 149 at 158-162, in particular, in relation to decisions that occur at a preliminary stage of a decision-making process. Mr. Walker’s concession implicitly accepted that the decisions of the HCCC challenged by the plaintiff in these proceedings were to be regarded as operating as a pre-condition to a course of action which is capable of altering rights, interests or liabilities.

9 The principal issues raised by the plaintiff’s amended summons filed on 1 June 2006 are as follows:-

(a) The requirements for a valid complaint prior to amendments made in the year 2004 to s.23 of the HCC Act.

(b) Whether there was a valid complaint concerning the plaintiff for the purpose of authorising an investigation under the HCC Act.

(c) Whether or not the investigations undertaken by the HCCC were invalidated by jurisdictional error.

(d) Whether the amendment to the HCC Act which omitted the requirement in former s.23(3) for complaints to be verified by statutory declaration, operated retrospectively in relation to the “complaint” purportedly made in relation to the plaintiff. If so, whether the omission of that subsection displaced any basis for alleged invalidity with respect to the HCCC investigation of the complaint.

1. Background

10 The plaintiff is a registered pharmacist. The HCCC is a statutory authority constituted under the HCC Act, s.75 with the functions set out in s.80 of the HCC Act. Broadly speaking, it has the responsibility of dealing with complaints made under the HCC Act or other Acts that are able to be dealt with by the HCCC. This includes the assessment and investigation of such complaints. The HCCC is also required to prosecute a complaint before a disciplinary body or otherwise take action as specified in s.39 of the HCC Act.

11 The Pharmacy Board is a statutory body constituted under the Pharmacy Act 1964 (NSW), s.4. A complaint about a pharmacist may be lodged with the HCCC or the registrar of the Pharmacy Board: Pharmacy Act, s.19D(2).

12 In October 2001, the HCCC received a memorandum or a report from a New South Wales police officer which contained allegations of sexual misconduct by the plaintiff.

13 The essential contentions made on behalf of the plaintiff in these proceedings were set out in written submissions (paragraphs 8, 9 and 10):-

“ … The Awad complaint had not been verified by a statutory declaration at the time the HCCC commenced its investigation (or after) because:-

(a) the investigation was well underway before a complaint was made and/or a statutory declaration was obtained; and

(i) the person who made the statutory declarations was incapable of verifying the contents of the complaint/ and/or

(ii) the statutory declarations did not, in terms, verify the complaint; and

(b) the requirement that complaint be verified was a jurisdictional prerequisite to the HCCC’s power to investigate, with the result that failure to comply with it invalidated any subsequent investigation.

9. Secondly, the subsequent passage of the Health Legislation Amendment (Complaints) Act 2004 (the Amending Act), which removed the requirement that complaints be verified by statutory declaration before the HCCC could begin to investigate them (whether the complaint was received before or after the Amending Act commenced), did not retrospectively validate the HCCC investigation into the Awad complaint.

10. The absence of a valid investigation of the Awad complaint meant that the HCCC had no power to prosecute it and the Pharmacy Board has no jurisdiction to inquire into it.

14 The amended summons was supported by two affidavits of Mr. Attia sworn respectively on 13 October 2003 and on 20 December 2005. The relevant facts disclosed therein were summarised in the plaintiff’s written submissions:-

“13. In September 2001, one of the plaintiff’s customers complained to the police regarding his conduct towards her at his pharmacy. On 7 September 2001, the police charged the plaintiff with aggravated indecent assault. The charge was dismissed by the Wyong Local Court in June 2002.

14. After the police charged the plaintiff, another customer made a statement to the police about the plaintiff’s conduct a month earlier. There were no criminal proceedings arising out of these allegations and this customer was not called to give evidence in the proceedings in the Wyong Local Court.

15. At no time did either customer complain to the HCCC or the Pharmacy Board.

16. In October 2001, the police officer in charge of the matter, Detective Steve Laksa, notified the HCCC of the customers’ allegations and of the police action and court case …

17. On 14 November 2001, after an assessment, the HCCC recommended an investigation into ‘the complaint’.

18. Between November 2001 and March 2003, the HCCC purported to investigate the complaint.

19. On 12 March 2003, Detective Laksa made a statutory declaration to the HCCC ‘hereby’ laying a complaint against the plaintiff.

20. Before the statutory declaration was made, the HCCC wrote to Detective Laksa enclosing the statutory declaration that it sought and seeking a copy of the police brief including statements from ‘victims and witnesses’.

21. At some stage after 25 February (and probably before the statutory declaration was made), the police forwarded a copy of the police brief in the criminal proceedings to the HCCC. Subsequently, the complaint to the HCCC was amended to include alleged misconduct towards three of the plaintiff’s employees. And on 1 July 2003, Detective Laksa made a further statutory declaration, again in terms prepared by the HCCC.

22. On 15 July 2004, the HCCC informed the plaintiff that it had completed its investigation. In November 2004, the HCCC made what is styled as a ‘complaint’ to the Registrar of the Pharmacy Board.

23. The HCCC investigation was thus concluded by July 2004.”

15 The plaintiff has denied the allegations of misconduct. The Pharmacy Board now proposes to proceed with an inquiry into the “complaint”.

16 The Pharmacy Board is responsible for the professional discipline of pharmacists (Part 4 of the Pharmacy Act). Any person may make a complaint to the Board that a pharmacist, inter alia, is guilty of professional misconduct or is not of good character: s.19D(1)(c) and (f). A complaint may be made directly to the registrar of the Board or to the HCCC: s.19D(2). The registrar is required to notify the HCCC of the nature of any complaint received: s.19E(1). The Board may deal with the complaint by, inter alia, investigating it (s.19F(b)), causing the HCCC to investigate it under the HCC Act (s.19F(b1)) or conducting a formal inquiry into the complaint (s.19F(d)).

2. The provisions concerning the assessment of complaints by the HCCC

17 The HCC Act deals separately with the processes of “assessment” and “investigation” of a complaint. Both fall within Part 2 of the HCC Act. The statutory requirement which is common to both is that a complaint must be made in writing (s.9(1)). As the HCC Act stood at the relevant time, a complaint had to be verified by statutory declaration before the HCCC could investigate: s.23(3). However, the provisions of the HCC Act did not impose such a requirement before the HCCC could undertake an “assessment”.

18 A complaint under the HCC Act was and is still required to include “particulars of the allegations”: s.9(2). Notification to and consultation with the appropriate registration authority is provided for in ss.10 and 12 of the HCC Act.

19 A complaint is to be notified to the person against whom it is made: s.16(1) of the HCC Act. Pursuant to Division 4 of Part 2 of the HCC Act, a complaint is to be “assessed”. The purpose of an assessment is to decide, inter alia, whether a complaint should be investigated or conciliated or referred to the Director-General or to another person or body in accordance with s.26 or to determine whether the HCCC should decline to entertain the complaint (s.20).

20 Section 23, prior to amendment, provided as follows:-

“(1) The Commission must investigate a complaint:-

(a) if, under s.13(1), the appropriate registration authority is of the opinion that the complaint should be investigated; or

(b) if, following assessment of the complaint, it appears to the Commission that the complaint:-

(i) raises a significant issue of public health or safety; or

(ii) raises a significant question as to the appropriate care or treatment of a client by a health service provider; or

(iii) provides grounds for disciplinary action against a health practitioner; or

(iv) involves gross negligence on the part of a health practitioner.

(2) A complaint is to be investigated in accordance with Division 5.

(3) However, the Commission must not investigate a complaint unless the complainant verifies the complaint by statutory declaration.

(4) The Commission may investigate a complaint despite any agreement the parties to the complaint may have reached concerning the complaint.”

21 Accordingly, prior to the investigation of a complaint, the HCCC had, and has now, jurisdiction to receive a complaint and to assess it and to decide whether or not to investigate it. As previously stated, there was no specified requirement for the verification of a complaint under the HCC Act at the stages preceding an investigation. Section 23(3), as it previously stood, constituted a statutory prohibition on the subsequent investigation of a complaint unless the complaint was verified.

3. The amending Act

22 The amending Act was assented to on 15 December 2004 and had effect from 8 March 2005. Schedule 1 to the Act entitled “Amendments to Health Care Complaints Act1993 relating to complaints” gives effect to the objects stated in its preamble “an Act to amend the Health Care Complaints Act 1993 in relation to procedure for dealing with complaints and the conciliation or resolution of complaints …”.

23 By clause 17 of Schedule 1 to the amending Act, s.23(3) was omitted. Part 3 of the amending Act entitled “provisions consequent on enactment of Health Legislation Amendment (Complaints) Act 2004” provided in clause 9(3) that:-

“An amendment made by Schedule 1 … [17] … applies to a complaint whether made before, on or after the commencement of the amendment.”

24 Clause 9(4) provided:-

“Despite subclause (3):-

(a) an amendment made by Schedule 1 [6] or [12] to the amending Act does not apply to a complaint that was assessed by the Commission under s.13 before the commencement of the amendment; and

(b) the amendment made by Schedule 1 [22] to the amending Act does not apply to a referral of a complaint under s.26 that took place before the commencement of the amendment; and

(c) the amendment made by Schedule 1 [37] to the amending Act does not affect any proceeding commenced before the commencement of the amendment; and

(d) an amendment made by Schedule 3 [2] or [5] to the amending Act does not apply to a complaint in respect of which the Commission has made a determination under s.39 before the commencement of the amendment.”

25 The above amendments were, accordingly, made and became operative after the purported investigation in this matter. However, a question of the retrospective operation of the amendments arises with respect to complaints made prior to the amendment. In particular, the issue as to the extent of the retrospective operation of the amendment to s.23 is one that the plaintiff raises in these proceedings and will be considered later in this judgment (Parts 11 and 12).

26 In these proceedings the issue raises the question whether the amendment to s.23(3) operated to remove any basis for any error (said by the plaintiff to have been a jurisdictional error) in relation to any investigation begun before 1 March 2005 based on a complaint that allegedly had not been verified in accordance with s.23(3).

4. The provisions concerning the investigation of complaints

27 The relevant provisions are found in Division 5 – Investigation of Complaints – of Part 2 of the HCC Act. The purpose of an investigation is stated to be the obtaining of information concerning a matter complained of and to determine what action should be taken in respect of the complaint: s.29(1) of the HCC Act. The provisions of Division 5 confer specific investigative powers upon persons who are authorised to carry out investigations.

5. Chronology of events

28 The evidence established the following matters:-

• On 7 November 2001, the HCCC received the memorandum dated 20 October 2001 from Detective Senior Constable Laksa.

• An HCCC internal file memoranda number 01/02179 was created. This document recorded the complainant as Detective Senior Constable Laksa. The box “assessment recommendation” was ticked and an assessment outcome, number 7 on the sheet which related to “investigation” (s.73) was indicated. There is a notation to notify the “complaint” to solicitors.

• On 20 November 2001, the HCCC wrote to Detective Senior Constable Laksa in a letter entitled “your complaint concerning Victor Awad” . The letter outlined the procedures which the HCCC was required to follow under the HCC Act. It sought copies of the statements of the alleged victims.

• On 20 November 2001, the HCCC also wrote to the plaintiff’s solicitor advising that it had received a complaint from Detective Senior Constable Laksa. The purpose of the letter was stated to be the furnishing of notice of the complaint.

• On 13 December 2001, the Registrar of the Pharmacy Board of New South Wales wrote to the Acting Manager, Complaint Assessment & Resolution at the HCCC acknowledging receipt of the “complaint” and expressing agreement with the HCCC’s decision to investigate the matter.

“I refer to a complaint against Mr. Victor Awad currently under investigation by the Health Care Complaints Commission …”

• On 26 August 2002, the HCCC wrote to the New South Wales Police Service requesting a copy of relevant statements and records in relation to the plaintiff for assistance in its investigation of the “complaint” .

• On 18 September 2002, the HCCC received from the Local Court, Wyong, copies of the transcript of proceedings of 17 and 18 January 2002.

• On 25 February 2003, the HCCC wrote to Detective Laksa advising of the HCCC’s decision to investigate the complaint “and request that you verify your complaint by statutory declaration as required by s.23 of the Health Care Complaints Act” . The letter enclosed a form of statutory declaration which had, as Annexure A, a copy of the police officer’s memorandum dated 20 October 2001.

• On 13 June 2003, the HCCC wrote to the defendant advising of the receipt of the complaint and providing notification in accordance with s.28(1) of the HCC Act. The letter enclosed a copy of the statutory declaration of Detective Senior Constable Laksa “setting out details of the complaint” .

• On 25 June 2003, the HCCC wrote to Detective Laksa. The letter referred to the HCCC’s earlier advice of its decision to investigate the complaint and acknowledged receipt of the statutory declaration sworn 12 March 2003. A further statutory declaration was sent which attached the police brief as Annexure A. The letter stated that the HCCC could not start its investigation “until your statutory declaration is received” . This letter, the plaintiff contended, amounted to a soliciting of, if not an initiation of, a complaint by the HCCC. The plaintiff also contended that this statutory declaration (sworn on 1 July 2003), like the previous one, was of no effect, it being said, as earlier noted, that Detective Laksa could not be a complainant and, in any event, he did not purport to verify this complaint.

• In July 2003, correspondence was sent to persons to act as independent reviewers in respect of a “Peer Review Request” .

• On 4 September 2003, the HCCC received a report in relation to “independent peer review” concerning the plaintiff.

• On 2 December 2003, the HCCC received signed statements from the alleged victims.

• On 15 July 2004, the HCCC advised the plaintiff it had finalised its investigation and proposed to prosecute the complaint before the Pharmacy Board and invited him to make submissions pursuant to s.40 of the HCC Act.

• On 17 November 2004, a complaint was made by the HCCC.

• On 9 December 2004, the Pharmacy Board wrote to the HCCC advising that it accepted the HCCC’s intention to prosecute before a Board of Inquiry pursuant to s.39(1)(a) of the HCC Act and s.19D of the Pharmacy Act 1964 .

• On 8 March 2005, the HCCC served a copy of the complaint dated 17 November 2004 on the plaintiff’s solicitor. On 11 May 2005, the first directions hearing was conducted in the Pharmacy Board.

6. The parties’ approach to the matters in issue

29 The approach taken by the plaintiff and defendant to the issues raised by the amended summons differed. Ms. Katzmann, SC., for the plaintiff, undertook a detailed analysis of the facts associated with the complaint, the steps taken prior to and during its investigation and the terms of relevant provisions under the HCC Act in relation to those matters. Ms. Katzmann submitted that there was no “complaint”, if there was a “complaint” then it had not been verified. In either case, it was submitted there had been no valid investigation. The amendments made to s.23, it was additionally contended, did not cure what was said to be an irremedial jurisdictional error.

30 Mr. Walker, SC., initially sought to meet the plaintiff’s claim for relief by dealing with the question of the retrospectivity of the amendments – whether, in particular, the amendment to s.23 confined the retrospective operation of Clause 9 of Schedule 1 to the amending Act to complaints that had not reached the investigative stage or whether it applied whether a complaint had been investigated before the amendment to s.23(3) or not. The argument advanced for the HCCC was that, assuming that there had been a “complaint” within the meaning of the HCC Act, the terms of the amending legislation applied to all complaints, including the complaint in this matter thereby removing the requirement for it to be verified by statutory declaration. Mr. Walker’s remaining submissions responded in detail to specific submissions made on behalf of the plaintiff.

7. The plaintiff’s contentions

7.1 The

“complaint”

initiated by the HCCC

31 The plaintiff contended that the complaint had purportedly been initiated by the HCCC inviting Detective Senior Constable Laksa to complete first one and then a second statutory declaration each of which had been prepared by an officer of the HCCC and sent to Detective Laksa with each, in due course, being sworn by him. The plaintiff additionally contended that the HCCC had failed to initially assess the complaint before proceeding to investigate it.

32 The HCCC, from an early stage, dealt with, the memorandum from Senior Constable Laksa dated 20 October 2001, as a complaint. The memorandum records “Tuggerah Lakes Detectives now make formal notification of the complaint made by [specifying the names of the complainants to police]”. The HCCC initially referred to the complaint as one for “assessment” and later one for “investigation”.

33 There is no prescribed procedure for an assessment of complaints under Part 2 Division 4 of the HCC Act. Nor is there a definition of what constitutes an “assessment”. Section 20 states that the purpose of an assessment includes deciding whether a complaint should be investigated.

34 The circumstances in which this matter was brought to the attention of the HCCC were somewhat unusual in that it was reported by New South Wales Police and not by a “client” or other participant in a health service. The HCCC were aware that police were investigating and later prosecuting the matter and during 2002/2003, the HCCC itself was taking steps to acquire information. Whether or not an “assessment” was undertaken by the HCCC is unclear. The early documentation (see chronology above) suggests that the matter was allocated for assessment but there is little detail as to how any assessment, if made, was undertaken. The early correspondence from the HCCC refers to the fact that the HCCC was investigating matters raised in Detective Senior Constable Laksa’s memorandum. In the early stages, the HCCC was seeking to gather information together for the purposes of an investigation by it.

35 The statutory declarations obtained from Detective Senior Constable Laksa in March and July 2003 were not preceded by any additional or specific assessment process. It is clear that the HCCC proceeded in June 2003 to implement a decision to investigate. For that purpose, it requested the statutory declarations purportedly in compliance with the requirement of (then) s.23(3) of the HCC Act.

36 I am of the opinion that the evidence does not establish that the HCCC acted in breach of provisions of ss.19, 20 and 23 of the HCC Act. Exhibit JR1 to Ms. Attia’s affidavit sworn 28 November 2005, in particular, pp.263-329, establishes that a number of preliminary steps were taken to obtain information relevant to the matters originally raised by Detective Senior Constable Laksa. Following dismissal of the charge brought against the plaintiff by Wyong Local Court on 24 June 2002, the HCCC proceeded to obtain further information in relation to his “complaint” and during that period commissioned an independent review of the matter. Even if I am wrong and there could be said to have been failure to make an assessment under s.19(1), I do not consider that a conclusion to that effect would establish jurisdictional error that invalidated the subsequent investigation. In so concluding, I have taken into account that there was no particular assessment procedure prescribed in the Act and I have also had regard to the principles concerning jurisdictional error discussed in paragraphs [90] to [100]. I will return to this aspect in the context of the discussion of those principles.

37 In relation to the request made by the officer of the HCCC to Detective Senior Constable Laksa for him to provide the statutory declarations, I do not consider, against the background of the police officer’s initial memorandum dated 20 October 2001, that it can be said that the HCCC itself procured or solicited the complaint or that it in fact made the complaint itself. The police brief attached to the statutory declarations contained statements and material that were consistent with the original report dated 12 October 2001. According to Detective Laksa’s memorandum, police had initially contacted the HCCC about the matter. The matter was then reported in writing to the HCCC following a request for information by the HCCC by New South Wales Police. I do not consider that it can be said having regard to these matters that a complaint was instigated by, encouraged or solicited by the HCCC. The request for the statutory declarations to be completed by Detective Laksa was made solely for the purposes of compliance with s.23(3), that is, for verifying the allegations concerning matters which police had originally brought to the HCCC’s attention for it to deal with in performance of its functions under the HCC Act.

7.2 The absence of a verified complaint

38 The submissions distinguished between events that occurred between 20 October 2001 (the date of Detective Laksa’s memorandum) and 23 March 2003 (the date of the first statutory declaration of Detective Laksa) and between 23 March 2003 and July 2004 (by which latter date investigations by the HCCC had been completed).

39 Ms. Katzmann, SC., for the plaintiff, contended that s,23(3) was a protective provision designed to prevent frivolous, vexatious or malicious claims. The requirement specified in that subsection, it was contended, was a mandatory one and breach of it constituted jurisdictional error and rendered the investigation by the HCCC invalid.

40 In this regard, it was submitted (plaintiff’s written submissions, paragraph 77):-

“The decision to commence the investigation was infected by jurisdictional error (the failure to comply with a jurisdictional prerequisite) and the investigation was thus a ‘nullity’, a purported investigation which could not have the consequences of a true investigation under the Health Care Complaints Act …”

41 Senior counsel for the plaintiff observed that the investigation was concluded by July 2004, well before the amending Act came into force (on 1 March 2005). Further, the HCCC had at an earlier stage, wrongly, acted on the basis that the report of Detective Laksa of 20 October 2001 was a complaint and proceeded to assess it and investigate it. Senior counsel submitted (at transcript p.14):-

“… in the result, the entire process of assessment of investigations was flawed … there was no complaint until at the earliest 12 March 2003 …”

42 As to the period October 2001 to 23 March 2003, the plaintiff’s case was that there had been no complaint at all lodged with the HCCC. The HCCC, in that period, had conducted itself on the basis that there had been a complaint when the contrary was the case.

43 As to the period 23 March 2003 to July 2004, senior counsel for the plaintiff submitted:-

(a) Detective Laksa could not be a complainant as he had no personal knowledge of matters concerning the allegations and therefore was unable to verify them.

(b) The alleged “complaint” in one or both of the statutory declarations made by him was not in terms or in substance a “complaint” in the sense of a “grievance” that something was wrong.

44 In relation to the third issue (an absence of verification), senior counsel for the plaintiff emphasised two points:-

(a) The person verifying a complaint had to have personal knowledge of the facts relevant to the complaint.

(b) A tension that had existed between s.8 and s.23(3) of the HCC Act which was only removed by the virtue of the abovementioned amendment to s.23.

45 Ms. Katzmann posed the question as to what s.23(3) comprehended by asking: “what is the purpose of requiring verification by statutory declaration?”. The answer, it was submitted, was the need to protect against complaints being made that were frivolous, vexatious or baseless. Mr. Walker contested the point responding in part by pointing to the provisions of s.27 which enables the HCCC to discontinue dealing with a complaint, inter alia, that is frivolous, vexatious or not made in good faith. That was a provision that indicated that the purpose of s.23(3) was not as the plaintiff had contended.

46 A further submission made on the plaintiff’s behalf, briefly referred to in paragraphs [31] to [36], focused on the events that took place after Detective Laksa’s statutory declarations were received by the HCCC. The HCCC, the plaintiff contended, simply continued its investigations without an assessment of the “complaint” (on the assumption that the second statutory declaration was a verified complaint) as envisaged by the HCC Act (in particular, ss.19 and 20). An assessment, it was submitted, operated as a further protection for a health practitioner against whom a complaint was made.

8. Complaints under the HCC Act

47 The term “complaint” is not defined in specific terms.

48 The provisions of the HCC Act prior to amendment drew a distinction between (a) “making” a complaint under s.9 “… made by lodging the complaint in writing” and, (b) verification of a complaint prior to its investigation. There was no requirement for a written complaint “made” under ss.7 and 9 to be verified. A complaint (unverified) could be notified under s.10. Consultation under s.12 and assessment under Part 2, Division 4 could proceed without verification, as the HCC Act did not require it at those stages.

49 An investigation under the HCC Act of a complaint follows the formation of an opinion by the HCCC or by an appropriate registration authority or following upon an assessment: s.23(1). According to the Shorter Oxford English Dictionary, “complaint” means, inter alia, “the expressing or an expression of grief” or “the expressing or an expression of grievance or injustice suffered; specifically, a formal accusation or charge, an allegation of a crime; or a subject or ground of dissatisfaction or grievance …”.

50 The plaintiff’s written submissions set out the Macquarie Dictionary meaning of complaint as an expression of grief, regret, pain, censure, resentment or discontent, lament or fault finding.

51 The dictionary meanings are to be considered along with the terms of the HCC Act. Section 9(2) indicates that a complaint is a written statement containing allegations:-

“The complaint is to include particulars of the allegations on which it is founded.”

52 The subject matter of a complaint must concern one or other of the matters set out in s.7 of the HCC Act with respect to a health practitioner or a health service or “health service provider”.

53 The memorandum made by Detective Senior Constable Laksa recites, in summary form, allegations that had been made by two young women to police. It concluded, as earlier noted, with a recommendation “that this be forwarded to the Health Care Complaints Commission for notification and disclosure of further complaints”. It was addressed to, amongst others, the Director – Health Care Complaints Commission. It referred to “an official complaint” having been made to police and provides details of the alleged conduct by the plaintiff who the memorandum named and identified as a pharmacist. The memorandum states:-

“Due to the nature of the complaints, investigators contacted the Health Care Complaints Commission … Police were advised that a complaint had been received by the Health Care Complaints Commission against Victor Awad”.

54 The HCCC, as noted earlier, regarded the memorandum as a complaint (although that, of course, is in no way determinative), referring to it as “your complaint” (see the HCCC’s letter dated 20 November 2001). The HCCC’s internal complaints details sheet dated 14 November 2001 identified Detective Senior Constable Laksa as complainant and has the words “notify complaint to solicitors” written on it (see p.318 of Exhibit JR1 to the affidavit of Rami Attia, solicitor).

55 The statutory declarations made on 12 March 2003 and 1 July 2003 use the expression “I hereby lay a complaint against Mr. Victor Andrew Awad of Wyong, the details of which are set out in the attached police brief dated 12 October 2001 …”

56 The memorandum went on to state:-

“Tuggerah Lakes Detectives now make formal notification of the complaint made by [name of the complainants].”

57 The two statutory declarations, in my opinion, for reasons discussed in paragraph [80], may properly be regarded as “complaints”, given their express terms and the contents of the documents that were annexed to them. Whether the complaints were verified as required by former s.23(3) is a question to be considered as a separate issue.

9. The requirement for verification under former s.23(3)

58 Ms. Katzmann, SC. contended that a complaint could only be verified by a person who was in a position to attest to the facts upon which an allegation of misconduct by a health practitioner were based. Having closely considered the submissions of the parties and the terms of the HCC Act, I do not consider that, as a matter of statutory construction, the contention made in that respect is correct.

59 The provisions of Part 2, Divisions 2, 3 and 4 indicate, as earlier noted, that various forms of action under the HCC Act may occur following the making of a complaint. Section 21, in particular, states that the HCCC may require the complainant to “provide further particulars of the complaint”. Section 23(1) makes it clear that before the HCCC could make a decision or assessment as provided for in s.23(1)(b), it is expected that the complaint (whether verified or not) will be considered and assessed by the HCCC. If an affirmative determination is made by the HCCC in terms of s.23(1)(b) following assessment, then s.23(1) requires the HCCC to investigate.

60 The issue as to verification raised two distinct matters. The first is concerned with the general issue as to what precisely it was that the legislature envisaged had to be verified. The second, concerning the specific facts of this matter, is the sufficiency of the terms of the statutory declarations made by Detective Laksa and whether either or both of them can be said to have, in fact, verified “the complaint”. The HCCC contended that the complaint was embodied in the declarations and the documents that were annexed to each of them. These two matters are considered below.

9.1 What did s.23(3) require to be verified?

61 Section 23(3) did not, in my opinion, restrict the requirement for verification so as to require verification of the truth of the facts subjacent to or relating to a complaint by a person who had personal knowledge of those facts. Although the terms of s.23(3) are somewhat obscure, their construction is to be understood, in my opinion, contextually in the light of the following:-

(a) A complaint under the HCC Act may be constituted by written allegations: see s.9 of the HCC Act.

“client”

62 The inclusion of such persons reveals clearly enough that persons with managerial responsibilities or those who have public duties to perform may make a complaint on behalf of persons who claim or allege that they have been subjected to misconduct by a health practitioner. It follows, for example, that the Minister or a parent or a guardian may verify allegations raised or made by another even though such persons are not in a position to verify from personal knowledge the relevant facts concerning an allegation made by a person against a health practitioner. As complainants making a complaint, they are the means by which a matter may be brought to the attention of the HCCC.

63 Before dealing with the relevant facts concerning the complaint in question, it is of some importance to consider the meaning of the phrase “verifies the complaint” in s.23(3) as it stood at the relevant time. Although the term “complaint”, as noted earlier, is not defined, other than in the most general way in s.3, it is possible to glean from other provisions of the HCC Act that a complaint under the HCC Act is a written document which includes particulars of allegations, the allegations being the foundation for the complaint itself: see s.9(1) and (2) of the HCC Act. When so understood, s.23(3) required verification of the document setting out “allegations” on which it is founded.

64 There was no express provision in the HCC Act specifically requiring that factual matters only, as distinct from allegations, be either specified or verified. Given the nature of a complaint under the HCC Act, it would be sufficient for the purposes of the HCC Act if a complaint were to allege impropriety or misconduct by a health practitioner supported by general allegations, for example, of sexual impropriety or other forms of misconduct, without necessarily revealing detailed factual material as to how, precisely, the misconduct or the impropriety is alleged to have occurred. No doubt in the course of assessment, more particulars would be sought.

65 There was no express requirement specified in the HCCC Act that a complainant be a person who had first hand knowledge of the facts relevant to a complaint or even, for example, that a complainant was required to have reasonable grounds for a belief formed or a suspicion held that impropriety, misconduct had occurred.

66 In the absence of an express provision of the HCC Act requiring a complainant to provide or specify verified factual material or a statement on oath as to any state of mind (such as knowledge or a belief or suspicion as to the basis for a complaint) close attention needs to be given to the meaning of the term “verifies” in the context of s.23(3), having regard to the fact that a complaint need only provide particulars of allegations.

67 In other areas of the law, not dissimilar questions have arisen in Azed Developments Pty. Limited v. Frederick & Co. Limited (in liq.) (1994) 14 ACSR 54, Hayne, J. considered the requirement for verification in accordance with the provisions of s.459E(3) of the Corporation Law. In that case, Frederick & Co. Limited (in liq.) gave a statutory demand to Azed Developments Pty. Limited claiming an amount of money said to be due and owing as monies had and received by Azed to the use of the creditor, Frederick & Co. Azed applied under s.459G of the Corporations Law for an order setting aside the statutory demand served on it.

68 Section 459E(3) provided that:-

“The demand must be accompanied by an affidavit that:-

(a) verifies that the debt, or the total of the amounts of the debts, is due and payable by the company; and

(b) complies with the rules.”

69 The contention for the appellant was that what was required by the terms of s.459E(3) was proof by evidence of all elements of the claim leading to the conclusion that the company was indebted to the creditor. It was submitted that the affidavit by the liquidator was deficient in that all that it did was to allege that a particular amount was owing and then to characterise or categorise the legal basis of the claim. It failed to identify and prove the various factual elements that would be necessary to be established in order to make good the legal claim. There was no proof, for example, in the affidavit of whose money it was that was paid into the account. There was no evidence as to whose money it was that was paid out of the bank account in question and, in particular, no account taken of what, if any, consequence would flow from any mixing of funds in the bank account in question. Hayne, J. stated at p.56:-

“Each party sought to pray in aid dictionary definitions of ‘verify’, and it is to be noted that I have expressed the contrary contentions by reference to expressions used in the first meaning attributed to the word ‘verify’ in the Oxford English Dictionary.

The kind of distinction which lies beneath the competing contentions of the parties is the kind of distinction drawn in an entirely different statutory context by Lee, J. in

Re Power

(1992) 35 FCR 133, where, in relation to certain industrial legislation of the Commonwealth, his Honour drew the distinction between ‘verify’ in the sense of ‘prove or demonstrate by good evidence or otherwise substantiate’ certain matters, and ‘verify’ used in the sense of ‘a formal affirmation’.

In my opinion, s.459E(3) uses the expression ‘verify’ in that latter sense rather than in the former sense contended for by the applicant. I consider that meaning to be adopted for a number of reasons.”

70 Hayne, J. went on to examine the whole of the statutory context in which s.459E(3) found itself with particular regard to s.459J. The latter section plainly indicated a statutory intention that the statutory demand procedure should be one where the effective onus of demonstrating the debt claimed is subject either of a genuine dispute or an off-setting claim which rested upon the party to whom such a demand is directed. Hayne, J. went on to say that if s.459E(3) was to be construed as the appellant contended, then every element of the cause of action in debt needed to be proved which would raise questions such as to what kind of evidence would be sufficient, whether the evidence had to be admissible in court, whether hearsay evidence would suffice, etc.

71 Hayne, J. concluded (at p.57):-

“When regard is had to the fact that the demand contemplated by Division 2 of Part 5.4 is a demand which may give rise to serious consequences for the recipient, it may be said that there should be strict compliance with the requirements imposed in connection with its making. But the consequences that follow from the making of a demand are consequences that follow if, and only if, the recipient of the demand does not, within the time limited by the law, apply under Division 3 of Part 5.4 for an order setting aside or modifying that demand. No right of the parties is determined by the making of the demand …”

72 It was held that when the whole statutory scheme was examined, including the right of the recipient of the demand to apply to a court to set it aside, it had been demonstrated that the verification spoken of by s.459E(3) was different from and less than the kind of verification contemplated by the argument made on behalf of the appellant.

73 In relation to other authorities that have considered the expression “verify” used in the sense of “a formal affirmation”: see Besser Industries (NT) Pty. Limited v. Steelcon Constructions Pty. Limited (1995) 129 ALR 308 per Branson, J. and re Power (1992) 35 FCR 133, per Lee, J.

74 The phrase “verifies the complaint” existed in the same context as s.8, (Part 2 of the HCC Act, Complaints). Section 8 provides that any of the persons specified in that section may make a complaint. Given that such persons may not have personal knowledge of the facts relevant to an allegation or allegations contained in it, the phrase “verifies the complaint” necessarily had to be construed so as to bring into account or accommodate that fact. This, in my opinion, supports an interpretation that “verifies” in s.23(3) has the sense of a formal affirmation of a complaint by one who makes a complaint (not unlike the sense in which verification was interpreted in Azed (supra), whilst noting the different statutory context in that case and the effect of the statutory provisions which operated differently and for different purposes).

75 Given that such complaint may be made by any one of the persons referred to in s.8, such formal affirmation could, in my opinion, extend to:-

• The fact that a grievance by way of report had been made to police by an alleged victim of misconduct or impropriety.

• The fact that the grievance contained specific allegations by the “victim” of the impropriety or misconduct.

• The fact as to the identity of the health practitioner who is the subject of the allegations.

• The fact as to information concerning the place, date and occasion upon which it is alleged impropriety or misconduct occurred.

76 Such an interpretation accommodates the tension that would otherwise exist between s.8 and s.23(3). A formal affirmation of the matters such as those referred to in the preceding paragraph would provide the HCCC with a legitimate basis for undertaking an assessment and, as appropriate, an investigation into a complaint.

9.2 The sufficiency of the statutory declarations: did they verify the complaint?

77 The annexures to the statutory declarations dated 1 July 2003 constituting Annexure A included a witness list and summary of evidence, a copy of the charge sheet, a five page “facts” sheet and a copy of the statement made by Detective Laksa dated 2 October 2001 signed and witnessed by him.

78 The statement of Detective Senior Constable Laksa dated 2 October 2001 commenced with a former statement by him that the document accurately set out the evidence which he was prepared if necessary to give in court as a witness and that the “statement” was true to the best of his knowledge and belief.

79 The statement also sets out details of the interview with the plaintiff in which the specific allegations relevant to the complaint made by the woman who reported the matter to police are put to the plaintiff for his response. A signed statement by Detective Senior Constable Griffith was included in the documents marked as Annexure A to the statutory declaration to which I have referred. That statement also records details concerning the attendance on the plaintiff at the pharmacy on Friday 7 September 2001.

80 The complaint referred to in the statutory declaration consisted of a number of allegations which were set out in the documents constituting Annexure A. The documents contained detailed information concerning the allegations together with factual matters asserted or alleged by the alleged “victim”. A person permitted to make a complaint under s.8 who is neither the victim nor a witness to any misconduct, plainly cannot attest or declare to the truth or substance of the complaint or as to the factual matters subjacent to it. The “complaint” referred to in the statutory declarations in these proceedings of Detective Senior Constable Laksa identified and verified:-

• The nature of the impropriety alleged by the informant to police.

• The specific allegations made by the informant to police.

• The factual matters related by the informant to police.

• The identity of the informant.

• The identity of the plaintiff.

81 Whilst the terms of the statutory declarations lack clarity, I am of the opinion that, on a proper construction, the effect of them was the making of a complaint against the plaintiff as set out in the attached documents. It would, of course, have been open to Detective Laksa to have said that he laid or made a complaint against the plaintiff “in the following terms” and then to have set out in the body of the declarations the details to be found in the attached documents. The statutory declarations in the form utilised were sufficient, in my opinion, to constitute a “complaint” in the sense discussed in paragraph [80].

82 The solemn declaration expressed by him in the words “… conscientiously believing the same to be true …” is a statement of belief that could only mean that he, in his capacity as investigating police officer, believed the information attached to the statutory declaration was a true record of information obtained as a consequence of police investigations as distinct from a statement of belief in the truth of the facts themselves. It is in the nature of a statutory declaration that it is a written statement of facts that the person making it (the declarant) signs and solemnly declares to be true before a Justice of the Peace or other authorised officer. The statement of facts in the present matter is a statement that the information in the attached documents in Annexure A was obtained by police investigators as a result of their investigations. The complaint as therein set out is verified by the statutory declarations, not, I have stated, as to the truth of the facts themselves, but as to the fact that the particular allegations were made and received in the course of police investigations supported by statements to police as to the facts alleged by others.

83 In the course of his oral submissions, Mr. Walker, SC. made the point in somewhat different terms as follows (transcript 1 June 2006 at p.21):-

“For all those reasons, in our submission, statutory declarations in the forms that were supplied in this case ought to be seen as supplying what might be called the authentication of the provenance of the allegations by the complainant putting their oath to it and, whether it’s a member of Parliament, a minister or a policeman, relaying that which had been alleged to them. The fact that it has been alleged to them is what requires to be verified as believed to be true. When one looks at the attached police brief, it bespeaks in inexplicit terms: this is what has been alleged to the police. That is what it says; that is what it is.”

84 In determining the meaning and function of former s.23(3), one may contrast its terms with other statutory formulations commonly found in other areas of the law. Statutes, for example, relating to the issue of search warrants not infrequently require that matters be established “on complaint made on oath”, eg., s.679 of the Criminal Code (Q) considered in George v. Rockett (1990) 170 CLR 104 at 113. In relation to the grounds stated on oath in a complaint to ground the issue of a warrant the critical question in many such cases was whether sufficient material existed in the sworn complaint to satisfy the magistrate that there were reasonable grounds for a state of mind, such as a belief, that documents to be searched for and seized will afford evidence as to the commission of an offence.

85 The purpose of verification specified in s.23(3) was not for the purpose of establishing a particular state of mind (such as a belief as to the existence of reasonable grounds as to a matter), but simply that there be some form of verification in respect of allegations expressed in a complaint. The statutory declaration of Detective Senior Constable Laksa served the purpose of verifying that police investigations resulted in the receipt by them of factual and other information in support of the complaint or the grievance that had been made concerning the plaintiff.

86 The terms of s.23(3) were far more limited and less demanding in terms of the type of verification required than the requirements for a sworn complaint establishing reasonable grounds for a suspicion or belief for the issue of a search warrant. The distinction may, in part, be explicable due to the intrusive nature of a search warrant which authorises the invasion of interests which the common law has always highly valued: George v. Rockett (supra) at 110-111.

87 I am of the view that the statutory declarations as to the matters specified in the annexed documents did provide verification for the purposes of and within the meaning of s.23(3).

88 Accordingly, I am of the opinion that there was compliance by the HCCC with the requirement imposed by s.23(3) for the purpose of the investigation of the complaint.

89 I, accordingly, am of the opinion that the decision made by the HCCC to investigate the complaint concerning the plaintiff was valid. I am also of the opinion that the investigation based upon that decision was lawfully conducted under the HCC Act. I am finally of the opinion that the decision of the HCC under s.39 of the HCC Act to prosecute the complaint as complainant before the Pharmacy Board and to refer it to the Board were decisions validly made under the HCC Act.

10. Jurisdictional error

90 In the event, contrary to the conclusions which I have expressed, that the complaint was not verified as required by former s.23(3), the question of jurisdictional error would then require determination. I, accordingly, proceed, notwithstanding my view to the contrary, to consider the matter on the basis that it could be said that there had been a breach of s.23(3) as the plaintiff has claimed.

91 There were two steps in the contention asserting jurisdictional error affecting the HCCC’s decisions. The first is the point that there had, in fact, been no verification as required. The second is that such a failure infected the investigation with jurisdictional error (the failure to comply with what was termed “a jurisdictional prerequisite” – written outline of plaintiff’s arguments, paragraph 77).

92 There would seem to be little room for doubt that the HCCC’s jurisdiction is essentially dependent upon the existence of a “complaint” within the meaning of the HCC Act. A complaint is an essential requirement for any of the processes referred to in Part 2 of the HCC Act including, in particular, assessments of complaints and investigations of them.

93 The HCCC has, and had at the time in question in these proceedings, the statutory functions conferred upon it by the provisions of s.80 of the HCC Act. These include the function of receiving and dealing with complaints relating to the professional conduct of health practitioners: s.80(1)(a).

94 Was the previous requirement in s.23(3) that required verification of complaints a jurisdictional prerequisite, or was it a non-jurisdictional condition?

95 In relation to this question, it is necessary, inter alia, to identify the purpose that was intended to be served by s.23(3). In SAAP v. Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009 McHugh, J., in relation to the question of whether a breach of a condition amounted to jurisdictional error, at [72] stated, citing Project Blue Sky Inc. v. Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391:-

“To answer this question, it is necessary to have regard to ‘the language of this relevant provision and the scope and object of the whole statute’ in order to ascertain whether the Parliament intended that an act done in breach of s.242A is invalid …”

96 In Project Blue Sky (supra), McHugh, Gummow, Kirby and Hayne, JJ. stated that whether an act done in breach of a condition regulating the exercise of a statutory power is invalid (at 390):-

“… depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of a purpose is ascertained by a reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

…

A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid … In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute

’.”

97 In SAAP (supra), Kirby, J. relied upon the mandatory language of s.424A (“must”) together with the provisions of Part 7, Division 4 of the Migration Act 1958 (Cth) in reaching the conclusion that breach of the section was sufficient to constitute jurisdictional error, being a breach of an imperative obligation in relation to the conduct of the review by the Refugee Review Tribunal in that case.

98 The question as to whether non-compliance with former s.23(3) constituted jurisdictional error turns upon its construction in the context of both Part 2 of the HCC Act and in the overall context of the HCC Act itself. This involves, in part, ascertaining the legislative intention with respect to s.23(3) and as to the effect of a failure to comply with it. Breach of the provision will lead to invalidity only if that is the legislative intention: Project Blue Sky (supra) at 388-389, [91] per McHugh, Gummow, Kirby and Hayne, JJ. See also SAAP (supra) per McHugh, J. at 1019.

99 The judgment of the members of the High Court in Project Blue Sky indicates that the mandatory language of s.23(3) (the phrase “… the Commission must not investigate a complaint unless …” is relevant to but it is not in itself decisive, of the inquiry: see, for example, NAHV (2003) 129 FCR 214 at 219-220, [23]. Further, as a general proposition, the word “must” in a given context need not necessarily bear what might be thought to be its primary character: SAAP (supra) per Gummow, J. at [134]. In some contexts, a specifically poised juxtaposition of the words “may” and “must” could indicate a distinction between a power and a duty imposed: SAAP (supra) per Gummow, J. at [134].

100 It is necessary to have regard to the significance of the obligation to which s.23(3) referred in the context of the scope and object of the HCC Act as a whole. On one view, the former requirement for verification may be said to serve a number of purposes. They included the need to provide a level of assurance that the HCCC’s investigations had a sound basis and in so doing to enhance the responsible use of the HCCC’s investigative processes and powers. It may also be said to have been intended to be directed at affording a measure of protection for the interests of a health practitioner who is the subject of a complaint. These two last mentioned aspects are, in a manner of speaking, two sides of the same coin. However, in relation to a practitioner’s interests, it is to be borne in mind, as noted, earlier, that the provisions of s.27 themselves independently permitted the HCCC to discontinue the investigation of complaints considered to be frivolous etc. Accordingly, former s.23(3) was not the only provision available to safeguard practitioners from unmeritorious complaints.

101 As Dixon, CJ. in Commissioner for Railways (NSW) v. Agalianos (1955) 92 CLR 390 at 397 stated “the context, the general purpose and policy of a provision and its consistency and fairness are sure guides to its meaning than the logic with which it is constructed”. Accordingly, it is important, as earlier stated, to examine the context or the statutory setting in which s.23(3) formerly existed as well as the objects and purpose of the Act: Project Blue Sky (supra) at 381.

102 The objects of the HCC Act are stated in s.3. These include:-

“(b) To promote the rights of clients in the New South Wales health system by providing clear and easily accessible mechanisms for the resolution of complaints;

…

(d) To provide an independent mechanism for assessing whether the prosecution of disciplinary action should be taken against health practitioners who are registered under health registration acts.”

103 It is evident that one of the paramount purposes or objects of the HCC Act, so far as misconduct matters are concerned, is to both protect the rights of clients, including patients, in the health system, being persons who use or receive health services as defined, and to provide an independent mechanism for assessing whether disciplinary action should be taken against a health practitioner: (s.3) of the HCC Act. The functions of the Commissioner set out in s.80 of the HCC Act indicate how such functions are to be carried out.

104 The HCC Act envisages the possibility that conduct of a health practitioner could in some circumstances raise issues of criminality in which case the HCCC would be expected to either refer the matter following assessment to police under s.26(1) or, following an investigation, to refer the matter to the Director of Public Prosecutions: s.39(1)(f).

105 Certain classes of complaints brought to the attention of the HCCC may require urgent action either in the interests of a particular patient or in the interests of a class of patients or other clients or by reason of a public interest issue which could constitute a significant issue or question within the meaning of s.23(1)(b)(i) or (ii) or one arising in terms of s.23(1)(b)(iii) or (vi).

106 It is difficult to reach the conclusion that, for example, in cases involving a complaint raising grave allegations against a health practitioner that the HCCC, when s.23(3) was, part of the Act, was, effectively, prevented from dealing with an unverified complaint by way of investigation lest the absence of verification amounted to jurisdictional error sufficient to occasion invalidity. It is not difficult to envisage a number of circumstances wherein the HCCC may have been unable to obtain a statutory declaration verifying a complaint. It would be a surprising construction, in my opinion, to hold that the operation of s.23(3) in such circumstances would properly be held to operate so as to defeat the relevant public interest.

107 It is also not to be overlooked that an “investigation” made pursuant to s.23 is not a public process involving public hearings. The HCCC undertakes the investigation of complaints in accordance with Division 5 of the HCC Act. Whilst certain compulsory investigative powers are available to it (see ss.33 and 34), any investigation by the HCCC involves a quite different process from certain investigations carried out by other investigative bodies such as the Independent Commission Against Corruption and the Police Integrity Commission where public hearings may be conducted and the investigations are then followed by a report to Parliament.

108 Some account should also be made as to the protective measures that apply under the HCC Act following an investigation. The HCC Act in this respect provides for sequential processes. First, under s.40, at the end of an investigation of a complaint against a health practitioner, he or she must be given an opportunity to make submissions in the event that the HCCC proposed to take any action referred to in s.39(1)(a), (b), (c) or (d). Secondly, the HCCC must comply with s.39(2) (consult with the appropriate registration authority before deciding what action to take). Notification then must be given to the parties to the complaint as to the results of the investigation and the action taken under s.39 together with the reasons for taking that action, and provide the complainant with an opportunity to request the HCCC to review the decision made under s.39: see s.41(1) of the HCC Act. In short, an investigation is not inevitably or in every case to be necessarily followed by action adverse to a practitioner.

109 Given the terms of former s.23(3), the possible purpose or purposes it was intended to serve (see, in that regard, paragraph [100]) and the scope and object of the HCC Act, it is by no means apparent that non-compliance with the section was intended by the legislature to result in invalidity. The HCCC’s overriding function is to advance the relevant public interest in relation to the type of matters or issues identified in s.23(1)(b). It is difficult, as I have stated, to interpret s.23(3), having regard to the objects of the HCC Act, and to the nature of the matters that may be the subject of a complaint, such that the HCCC was effectively prevented, in the absence of verification for whatever reason, and for reasons of invalidity, from investigating a serious or urgent matter.

110 In relation to the question whether it was a purpose of the legislation that an act done in breach of former s.23(3) should be invalid due to jurisdictional error, I am of the opinion that the answer should be in the negative. In determining that question, I am of the opinion that regard may be properly to be given to the following matters, as relevant:-

(a) The language of former s.23(3).

(i) The promotion of the rights of clients in the New South Wales health system by providing clear and easily accessible mechanisms for the resolution of complaints: s.3(b).

(ii) The provision of an independent mechanism for assessing whether disciplinary action should be prosecuted: s.3(d).

(iii) The absence of any express statutory requirement for a complainant to swear to the truth of “facts” relied upon in support of a complaint.

(iv) The fact that a complaint under the HCC Act may be constituted by “allegations” without the need for further specificity and as distinct, for example, from sworn evidence attesting to underlying facts.

(v) The fact that the statutory scheme of the HCC Act provides that an investigation is itself the process for ascertaining facts concerning a complaint. It is not for a complainant, as in ordinary legal proceedings, of a court or proceedings of a tribunal, to “make out a case” or to prove anything.

(vi) The fact that, by reason of s.8 of the HCC Act persons who do not have personal knowledge of the facts concerning a complaint may lodge a complaint, is consistent with the proposition that the level or type of verification formerly required by s.23(3) was not necessarily to be provided by a person with first hand knowledge of the facts but was in the nature of a formal affirmation as a condition for investigating a complaint. It could, in my opinion, hardly be said that a breach of such a requirement was intended to result in invalidity of an investigation regardless of the issues or their gravity, significance, urgency or importance in terms of the relevant public interest.

11. Retrospectivity of the amending Act

111 Given the conclusions which I have expressed above, the issue of the extent of retrospectivity associated with the omission of s.23(3) so far as complaints made before the amendment are concerned strictly does no arise. However, given that the issue has been fully argued, and, in the event that it may be said that there is error in relation to conclusions that have been expressed on other issues, there is reason to determine the issue.

112 It was submitted on behalf of the plaintiff that the amending Act, by its amendment of s.23, “did not retrospectively validate the investigation”. There was, it was contended, nothing to indicate that Parliament intended to retrospectively validate investigations begun before the verification requirement was omitted, let alone an investigation that had concluded. The amending provisions, it was emphasised, referred to a “complaint” and not to an “investigation”.

113 The contention was that, absent a valid complaint, the investigation purportedly based on it was also invalid and a nullity (and one that could not retrospectively be “cured” by the amendment). There could, the argument proceeded, therefore have been no valid referral of the complaint to the Pharmacy Board, especially as there existed no other source of power to refer a matter to the Board.

114 The plaintiff’s submission, therefore, was that the HCCC has no power to prosecute the “complaint” before the Board unless or until it undertook a valid investigation. This, it was submitted, it had not done. The provisions of ss.39 and 80 of the HCC Act were said to evidence the requirement for a “proper” or “valid” investigation before a complaint could be prosecuted before a registration authority such as the Pharmacy Board. Ms. Katzmann, SC., accordingly, submitted “there was no valid reference to trigger the jurisdiction of the Pharmacy Board and that the HCCC cannot prosecute the complaint because the investigation was a nullity …”.

12. The HCCC’s contentions on the effect of the amending Act

115 The HCCC contended that the effect of Clause 3 of Schedule 1 to the amending Act was that it applied to the “complaint” concerning the plaintiff (assuming a complaint could be shown to have been made), notwithstanding that an investigation into it had been completed before the amendment took effect. The contention rested upon two matters:-

(a) The express words of clause 9(3), “… the amending Act applies to a complaint whether made before on or after the commencement of the amendment” (emphasis added).

116 Clause 9 of Schedule 1 is in the following terms:-

“(1) An amendment made by Schedule 1 [7] or [24] to the amending Act applies only to complaints made on or after the commencement of the amendment.

(2) Despite subclause (1), an amendment made by Schedule 1 [7] or [24] to the amending Act applies to a complaint made before the commencement of the amendment to the extent (if any) that s.20A(3) applies to the complaint.

(3) An amendment made by Schedule 1 [6], [10]-[14], [17]-[23], [27], [29], [32], [37] or Schedule 3 to the amending Act applies to a complaint whether made before, or on or after the commencement of the amendment.

(a) an amendment made by Schedule 1 [6] or [12] to the amending Act does not apply to a complaint that was assessed by the Commission under s.13 before the commencement of the amendment, and

(b) the amendment made by Schedule 1 [22] to the amending Act does not apply to a referral of a complaint under s.26 that took place before the commencement of the amendment, and

(c) the amendment made by Schedule 1 [37] to the amending Act does not affect any proceedings commenced before the commencement of the amendment, and

(d) an amendment made by Schedule 3 [2] or [5] to the amending Act does not apply to a complaint in respect of which the Commission has made a determination under s.39 before the commencement of the amendment.”

117 The HCCC contended that clause 9(4), which commences with the words “despite subclause (3)”, operated to wind back the extent of the amendment in accordance with sub-clause 4(a) to (d) inclusive. In that respect, it effectively operated in the manner of an exception clause.

118 Mr. Walker, SC. emphasised, in particular, the terms of s.9(4)(d) (concerned with amendments made by Schedule 3[2] or [5]) which state that the specified amendments do not apply to a complaint that has been the subject of a HCCC determination made under s.39:-

“… the amending Act does not apply to a complaint in respect of which the Commission has made a determination under s.39 before the commencement of the amendment.”

119 Determinations under s.39 are made “at the end of the investigation of a complaint”: s.39(1). Mr. Walker contended that this provision demonstrates that a “complaint” in respect of which a determination has been made is excepted from Clause 9(3) only in the limited circumstances specifically stated in Clause 9(4)(d). The argument was that Clause 9(3) in its contextual setting, specifically when considered with Clause 9(4), operated so that complaints that have been dealt with by investigation and determination are only precluded from the retrospective operation of Clause 9(3) in the specific circumstances specified in Clause 9(4)(a) to (d).

120 In determining Parliament’s intention in enacting clause 17 of Schedule 1 to repeal s.23(3), with retrospective effect it is of assistance to examine each of the specific clauses in Schedules 1 and 3 of the amending Act that are subject to the limited form of retrospectivity effected by clause 9(4) (clause 17 not being one of those clauses). To that end, the following comments are noted:-

(a) Limited retrospectivity to a provision that dispenses with parties’ consent

121 Clause 9(4)(a) relates to conciliation processes under the HCC Act, namely, conciliation following consultation between the HCCC and a registration authority under s.13. One, amongst other differences with the new form of s.13 is that consent of the parties to the complaint is no longer required. That is a significant alteration to rights of such parties and for that reason there is an evident reason for limiting the retrospective operation of clause 9(3) of Schedule 1.

(b) Limited retrospectivity with respect to complaint referred

122 Clause 9(4)(b) relates to the referral process under s.26. The new or amended form of s.26 introduced additional processes for complaints that have been referred – including referral back to be dealt with by the HCCC for its assessment or referral by a public health organisation to be dealt with under Division 8 (Conciliation of Complaints) or new Division 9 (Complaints Resolution). Clause 9(4)(b) evinces an intention to place a limitation on retrospectivity so that a complaint that was referred before the amendments took place would not, on a retrospective basis, be subjected to the additional and new processes now prescribed by s.26.

(c) Limited retrospectivity to new immunity provision

123 Clause 9(c) extends the immunity provided by the former provisions of s.96 by providing immunity from action etc. to persons who make a complaint or report a matter or thing that could give rise to a complaint. Again, because such a provision is capable of affecting the accrued rights or liabilities that existed at the date the amendments took effect, there is an evident reason for limiting their retrospective operation in accordance with the terms of clause 9(4)(c).

(d) Complaints in relation to which a determination has been made

124 The amendments effected by Schedule 3[2] and [5] concern a new procedure whereby complaints may be referred to the Director of Proceedings (a new office established pursuant to the amendments, who determines whether a complaint is to be prosecuted). This new procedure replaces the previous one whereby it was left to the HCCC itself to decide and take prosecutory action with respect to a complaint. The limitation on retrospectivity by virtue of Clause 9(4)(d) is plainly intended to exempt or preserve a determination already made under s.39(1)(a) from the amendments made by Schedule 3 [2] and [5] of the amending Act.

125 Some general observations remain to be made on the subject of the retrospective terms of clause 9(3):-

(a) A “complaint” under the HCC Act is the action or step which provides the HCCC with jurisdiction to take action under the HCC Act, namely, consultation with a registration authority, assessment and investigation or referral of the complaint under Part 2, Division 4, and the making of a determination under s.39 (as it then stood) to prosecute or otherwise to take one of the other courses of action referred to in that section.

(b) The fact that, following investigative action, a complaint may, in general terms, be an “investigated complaint” does not prevent it from being a “complaint” referred to in Clause 9(3).

(c) Accordingly, adopting the approach, as the plaintiff attempts to do, to limit the retrospective operation of Clause 9(3) by saying that once a complaint has been subjected to investigation it no longer is to be considered “a complaint” to which s.9(3) refers, is to misstate the nature and effect of what is comprehended by an “investigation” . Additionally, the approach is incompatible with the only limitation on complaints that have, in fact, been actioned by a determination, namely, the limitation that has been expressed in clause 9(4)(d).

(d) An investigation once conducted does not, like a judgment in a civil action, supplant the independent existence of a complaint by merging it. An investigation is simply the process of obtaining information concerning the matter complained of as the terms of s.29(1) of the HCC Act indicate.

complaint

126 I, accordingly, am of the opinion that the amendment to omit s.23(3) applied to the complaint made under the HCC Act against the plaintiff. If there was, in fact, a non-compliance with that provision and if such non-compliance was capable of constituting a jurisdictional error, then its omission by the amendments, in my opinion, meant that s.23(3) is to be treated, for the purposes of the complaint made by Detective Laksa, as not having operated in relation to it. On that basis, any failure to verify could not give rise to invalidity in the investigation based on the jurisdictional error contended for by the plaintiff.

127 I am, accordingly, of the opinion, for the reasons stated, that the amended summons should be dismissed and I so order.

128 Unless the plaintiff wishes to argue to the contrary by lodging written submissions with my associate within 14 days, I propose to order that costs should follow the event in accordance with Uniform Civil Procedure Rules 2005, Part 42.1. Subject to that proviso, I order the plaintiff to pay the defendant’s costs of the proceedings.

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Citations

Awad v Health Care Complaints Commission [2006] NSWSC 698

Most Recent Citation

McMillan v Director-General of Communities NSW [2009] NSWSC 1236

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CITATION:	AWAD v. HEALTH CARE COMPLAINTS COMMISSION & ANOR [2006] NSWSC 698
HEARING DATE(S):	Thursday 1 June 2006
JUDGMENT DATE :	19 July 2006
JURISDICTION:	Administrative Law
JUDGMENT OF:	Hall J at 1
DECISION:	Amended summons dismissed. Unless the plaintiff wishes to argue to the contrary by lodging written submissions with my associate within 14 days, I propose to order that the costs should follow the event in accordance with UCPR 2005, Part 42.1. Subject to that proviso, I order the plaintiff to pay the defendant's costs of the proceedings.
CATCHWORDS:	Whether a purported complaint under the Health Care Complaints Act 1993 (NSW) was a complaint under the Act - if so, whether it was verified as required by former s.23(3) prior to that provision being omitted by the 2004 amending legislation - the meaning of the phrase "verifies the complaint" - what constitutes "verification" - whether breach of the requirement to verify a complaint constituted jurisdictional error invalidating the investigation of the complaint - the decision to prosecute the complaint before the Pharmacy Board and the decision to refer the complaint to the Pharmacy Board - the extent of the retrospective operation of the 2004 amending Act expressed to apply to "a complaint whether made on or after the commencement of the amendment" and whether the amendment applied to a complaint already investigated prior to the amendment
LEGISLATION CITED:	Health Care Complaints Act 1993 (NSW) Pharmacy Act 1964 (NSW) Health Legislation Amendment (Complaints) Act 2004
CASES CITED:	Azed Developments Pty. Limited v. Frederick & Co. Limited (In liq.) (1994) 14 ACSR 54 Besser Industries (NT) Pty. Limited v. Steelcon Constructions Pty. Limited (1995) 129 ALR 308 re Power (1992) 35 FCR 133 George v. Rockett (1990) 170 CLR 104 SAAP v. Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 1009 Project Blue Sky Inc. v. Australian Broadcasting Authority (1998) 194 CLR 355 NAHV (2003) 129 FCR 214 Commission for Railways (NSW) v. Agalianos (1955) 92 CLR 390
PARTIES:	AWAD, Victor Andrew v. HEALTH CARE COMPLAINTS COMMISSION & ANOR
FILE NUMBER(S):	SC No. 30090 of 2005
COUNSEL:	Plaintiff: A. Katzmann, SC/M. Lynch/B.D. O'Donnell Defendant: B. Walker, SC/G. Furness/C. Lenehan
SOLICITORS:	Plaintiff: J.R. Lawyers Defendant: Health Care Complaints Commission