Bolstad v Psychology Council of New South Wales

[2020] NSWSC 1416

Supreme Court

New South Wales

Medium Neutral Citation:

Bolstad v Psychology Council of New South Wales [2020] NSWSC 1416

Hearing dates:

2 September 2020

Date of orders:

2 September 2020

Decision date:

14 October 2020

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) The Psychology Council of NSW and or its nominees be restrained from proceeding to make final orders of suspension of registration under s 150 Health Practitioner Regulation National Law (NSW) (hereinafter “the Act”) relating to the Applicant, Ms Christine Bolstad, until the Applicant has been afforded a reasonable opportunity to prepare her case or until a date after 25 September 2020, whichever is earlier.

(2) Declaration that a condition that the Applicant not practise psychology pending the further hearing to finalise the issues under s 150 of the Act or an interim order suspending registration until the further hearing to finalise the issues under s 150 of the Act is not a final order that is constrained by Order 1 herein.

(3)   No order as to costs.

Catchwords:

ADMINISTRATIVE LAW – natural justice – urgent need for orders to protect public – permanent orders affect burden of proof – need to preserve right of plaintiff to prepare and present material while still protecting the public.

Legislation Cited:

Health Practitioner Regulation National Law (NSW), s 150

Cases Cited:

Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57

CPCF v Minister for Immigration (2015) 255 CLR 514; [2015] HCA 1

Sullivan v Department of Transport (1978) 20 ALR 323; [1978] FCA 48

Category:

Procedural and other rulings

Parties:

Christine Bolstad (Applicant)
Psychology Council of New South Wales (Respondent)

Representation:

Counsel:
H Marshall SC (Applicant)
A Petrie (Respondent)

Solicitors:
Norton Rose Fulbright (Applicant)
Loraine Yii, Legal Officer, Health Professional Councils Authority (Respondent)

File Number(s):

2020/255396

ex tempore Judgment

1. HIS HONOUR: I intend to reserve reasons but very briefly, because I think it is incumbent upon me so to do, I make a couple of comments.

2. First, before the Court is an application for an injunction which is in large measure an application for final relief, albeit it is framed in terms which are interlocutory in timing, seeking to stay a hearing under s 150 of the Health Practitioner Regulation National Law (NSW) (hereinafter “the Act”), which is due to be held tomorrow, that is 3 September 2020, until a date not before 25 September 2020, by which time it is said the applicant will be able to obtain or may be able to obtain evidence corroborating her denial that she has consumed alcohol, contrary to conditions that were imposed upon her continued practice as a psychologist.

3. The applicant, or plaintiff, has had issues with the consumption of alcohol for a long period. Given that these are intended to be preliminary reasons, the final reasons being reserved, I do not intend to deal with that long history but they are contained in a number of reports which are before the Court.

4. Essentially, the plaintiff relies upon what is said to be a denial of procedural fairness or natural justice. The High Court has made clear in a number of judgments, and I refer particularly to the judgment of the High Court in Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57 and, in more recent times, CPCF v Minister for Immigration (2015) 255 CLR 514; [2015] HCA 1, and, in particular, the reasons for judgment of Gageler J at [367] therein.

5. Subject to issues associated with urgency, which are important, there are a number of factors in this matter. First, the Psychology Council of New South Wales has public duties relating to protecting the public from unsafe practices or matters that would affect the safety of the public from those people who may be practising psychology. The scheme of the Act is that orders may be made by the Psychology Council under s 150 of the Act. If orders are made under that section, within seven days the matter must be referred to the Health Care Complaints Commission and there is, as I understand the way that Act operates, an investigation of the issues and the matter is dealt with.

6. If I can come back to general principle, it was held by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323; [1978] FCA 48 that a Court or Tribunal that is required to act judicially, which in this instance includes the Psychology Council when exercising its powers under s 150 of the Act, is required to provide a person who may be adversely affected with a reasonable opportunity to prepare and to present their case. I hasten to add that the provision of a reasonable opportunity does not involve the Court or Tribunal in undertaking the impossible task of ensuring that once such a reasonable opportunity is given the party takes best advantage of the opportunity so provided.

7. There has been a degree of opportunity provided to the plaintiff in these proceedings but the opportunity has been confined to a short period of time. The Psychology Council of New South Wales informs the Court and has taken the Court to the legislation to the effect that once a hearing under s 150 of the Act occurs and action is taken, the matter must within seven days of that hearing be referred to the Health Care Complaints Commission and there are rights of review so that the Council can alter its finding; and rights of appeal both to, it seems, the Commission who may undertake a more permanent process and ultimately the New South Wales Civil and Administrative Tribunal (NCAT).

8. I accept unreservedly the submission that there are rights of appeal and, to some extent, they protect the plaintiff. The difficulty is there are, it seems to me, on the face of it and without having heard this matter to final hearing, in the sense that it has been dealt with in the Duty List on an urgent basis, differences of onus associated with either a review or an appeal and the plaintiff may be prejudiced in relation to either the adducing of fresh evidence or evidence that is not fresh and therefore overturn whatever may be done in the s 150 hearing.

9. It seems to me, given the dramatic effect on the capacity of the plaintiff to practice for a significant if not indefinite period into the future, the plaintiff has a legitimate concern as to the time she has been given to prepare the case. I make no comment about the presentation of any case.

10. I have been taken to a number of alcohol test results. The tests show, over a period, evidence of the consumption of alcohol. In some instances, the tests were, what has been called, a diluted result, the meaning of which the Court has been taken to in the documents that are before the Court.

11. The real issue is what the Court should do in terms of the hearing tomorrow. There are countervailing aspects. It is accepted that a condition that has been imposed in the past, in particular on 9 April 2019, was to the effect that the applicant not practice psychology. The Council referred the Court to the Report of Impaired Registrants Panel of 3 October 2019 at p 3.9 which states that a hearing was held on 2 April 2019 and such a condition was imposed.

12. Counsel who appears on behalf of the Psychology Council of New South Wales informs me that imposing a condition of that kind is in disuse. I accept that. It is a rather strange condition, given that registration seems in those circumstances to be futile but nevertheless it is a condition which is imposed upon registration as such.

13. Having read the material, I doubt very much that material will be able to be obtained by the plaintiff which would undermine that which it seems is being relied on by the Psychology Council for the purposes of the s 150 hearing. Nevertheless, it seems to me that in all of the circumstances it is appropriate for the plaintiff to have the opportunity so to do. Having said that, I appreciate, as has been put forcefully, that the duty to the public is one which must be the primary or overriding purpose of the conduct of the Council.

14. In the circumstances, the Court will make the following orders:

1. The Psychology Council of NSW and or its nominees be restrained from proceeding to make final orders of suspension of registration under s 150 Health Practitioner Regulation National Law (NSW) (hereinafter “the Act”) relating to the Applicant, Ms Christine Bolstad, until the Applicant has been afforded a reasonable opportunity to prepare her case or until a date after 25 September 2020, whichever is earlier.

2. Declaration that a condition that the Applicant not practise psychology pending the further hearing to finalise the issues under s 150 of the Act or an interim order suspending registration until the further hearing to finalise the issues under s 150 of the Act is not a final order that is constrained by Order 1 herein.

3. No order as to costs.

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Decision last updated: 14 October 2020