CDC Clinics Pty Ltd v Health Complaints Commissioner
[2020] VSC 597
•18 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 05205
| CDC CLINICS PTY LTD ACN 109 209 921 | First Plaintiff |
| and | |
| CYNTHIA LEA WEINSTEIN | Second Plaintiff |
| v | |
| HEALTH COMPLAINTS COMMISSIONER | Defendant |
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JUDGE: | FORBES J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 29 & 30 April 2020 |
DATE OF JUDGMENT: | 18 September 2020 |
CASE MAY BE CITED AS: | CDC Clinics Pty Ltd & Anor v Health Complaints Commissioner |
MEDIUM NEUTRAL CITATION: | [2020] VSC 597 |
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JUDICIAL REVIEW AND APPEAL – Appeal from decision of the Health Complaints Commissioner – Complaint made to Commissioner - Breach of general code of conduct for general health services – Complaint also made about medical practitioner - Commissioner’s jurisdiction to exercise functions and power when a complaint has been referred to AHPRA – Legislative direction to act co-operatively – No error in apprehending jurisdiction conferred by s 27 of the Act – Commissioner acted within scope of the Health Complaints Act 2016 (Vic) (‘the Act’) ss 13, 18, 20, 25, 26, 27, 45, 90, 95, 96 - Health Practitioner Regulation National Law (Victoria) Act 2009 (‘the National Law’) s 150.
PROCEDURAL FAIRNESS - Referral of complaint to AHPRA - AHPRA investigation –Whether it was legally unreasonable to make orders inconsistent with AHPRA investigations - Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
NATURAL JUSTICE – Apprehended bias – Whether Commissioner’s exercise of discretion was affected by bias - Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Test applies to administrative decision makers – Published comment by Commissioner – Perspective of fair minded lay observer - No prejudgment - CNY17 v Minister for Immigration and Border Protection (2019) 375 ALR 47 - Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 - SZCOS v Minister for Immigration & Citizenship [2008] FCA 570.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Ms M. Schilling | Michael V Stapleton |
| For the Defendant | Mr J. Pizer QC and Mr B. Jellis | Minter Ellison |
HER HONOUR:
Ms Cynthia Weinstein established CDC Clinics Pty Ltd (‘CDC’) in 2004. CDC is located in Armadale, Melbourne and offers the services of cosmetic medical practitioners, nurses and laser therapists as well as non-cosmetic medical services. Ms Weinstein is the practice manager of CDC. She is a former dermatologist and cosmetic surgeon but no longer a registered medical practitioner. Dr Angela (Hua) Xu is a registered medical practitioner who provides medical services to clients at CDC.
CDC and Ms Weinstein (‘the plaintiffs’) seek judicial review of prohibition orders affecting them, the orders were made by the Health Complaints Commissioner (‘Commissioner’) pursuant to the Health Complaints Act 2016 (Vic) (‘the HC Act’). The grounds of review identify that:
(a)the defendant fell into error by misapplying her jurisdiction under s 27 of the HC Act;
(b)the decision to make the Prohibition Orders was legally unreasonable; and
(c)in making the Prohibition Orders the plaintiffs were not accorded procedural fairness in that the conduct and findings of the Commissioner gave rise to a reasonable apprehension that the Commissioner might not have brought an impartial mind to bear on the decision before her.
Complaint to the Commissioner
On 4 January 2018 the Commissioner received a complaint from Complainant A[1] about cosmetic services provided to her by Ms Weinstein and Dr Xu at CDC. In her original complaint[2] she said that she received cosmetic injections on 28 January 2017 from Ms Weinstein and on 4 April 2017 from Dr Xu. The complaint summary initially prepared by the Commissioner reflected this.[3] Ultimately the complaint involved three dates of treatment: 28 January 2017, 11 March 2017 and 22 April 2017.
[1]The complainant, referred to as Complainant A in this proceeding was referred to as KJ by the Commissioner during its investigation of the complaint. Plaintiffs’ Exhibit 1, Final Investigation Report, 31 January 2019 (‘HCC final report’) (Mr Stapleton’s Affidavit 27 November 2019, Exhibit MVS-14).
[2]Defendant’s Exhibit A, Complaint ‘201801115 Memo-General’, 24 April 2019 (Affidavit and Exhibits of Mr Haller-Trost (‘HT Affidavit’), Exhibit RPHT-1).
[3]Defendant’s Exhibit A, Complaint Summary for 201801115 (HT Affidavit (n 2), Exhibit RPHT- 4).
Complainant A contends that on 28 January and 11 March she received injections of a permanent filler Oxane into her lips and cheeks. She alleged that Ms Weinstein performed these procedures while Dr Xu observed. She alleged that on the third occasion, 22 April 2017, Dr Xu injected her lips with Oxane in the course of which it appeared to her that something had gone wrong. Dr Xu then called on Ms Weinstein and conversed with her about the procedure. Complainant A was dissatisfied with the outcome of the first procedure and the corrective actions and further injections on the subsequent occasions saying that as a result her features had become asymmetrical.
Ms Weinstein and CDC are ‘general health service providers’[4] and the complaint against them falls for the Commissioner to deal with under the HC Act.
[4]A general health service provider is a person who provides a health service that is not the ‘practice of a health profession’ under the Health Practitioner Regulation National Law (‘the National Law’).
Referral to AHPRA of the complaint against Dr Xu
Dr Xu is a registered medical practitioner who provides services as an independent contractor. As a registered medical practitioner she is a ‘health practitioner’ as defined by the Health Practitioner Regulation National Law (Victoria) Act 2009 (‘the National Law’).
Where the Commissioner receives a complaint regarding a health practitioner, ss 25 and 26 of the HC Act require notification of the complaint to the body responsible for dealing with the matter. In this case, the complaint against Dr Xu fell for notification to the Australian Health Practitioner Regulation Agency (‘AHPRA’) and referral to the Medical Board to deal with. AHPRA was informed and the complaint was referred.
Where notification and referral to AHPRA and the Medical Board has occurred, s 150 National Law sets out the relationship with a Health Complaints entity such as the Commissioner. Section 150 is set out in full later in these reasons. Relevantly at present s 150(2) requires the Commissioner to:
150 Relationship with health complaints entity
....
(2)If a health complaints entity receives a complaint about a health practitioner, the health complaints entity must, as soon as practicable after its receipt –
(a)notify the National Board established for the practitioner’s health profession that the health complaints entity has received the complaint; and
(b) give to the National Board –
(i)a copy of the complaint or, if the complaint was not made in writing, a copy of the health complaints entity’s record of the details of the complaint; and
(ii)any other information the health complaints entity has that is relevant to the complaint.
….
Once referred, AHPRA and the Medical Board decided to investigate the complaint against Dr Xu. At the time of the referral the complaint was described in terms of the original summary of complaint: that is treatment on 28 January 2017 by Ms Weinstein and on 4 April 2017 by Dr Xu.
On 27 March 2018 AHPRA commenced an investigation into the conduct of Dr Xu[5] under Part 8 of the National Law. AHPRA advised the issues that it identified for investigation as:
[5]Dr Xu was informed of this decision in a letter of 26 June 2020 at Plaintiffs’ Exhibit 1, AHPRA, Letter from AHPRA to Dr Xu (Mr Stapleton’s Affidavit 27 November 2019, Exhibit MVS – 4).
Whether on or around 28 January 2017 and 4 April 2017 you improperly injected fillers into the lips and cheeks of patient [Complainant A] and failed to:
a.recognise and work within the limits of your competence and scope of practice.
b. ensure the patient was informed of the material risks associated with any part of the treatment provided.
c. obtain the patient’s informed consent prior to providing the treatment.[6]
[6]Ibid 2.
The clinical records[7] held by CDC were obtained by the Commissioner following its request to Dr Xu on 20 April 2018 and forwarded to AHPRA.
[7]Plaintiffs’ Exhibit 1, Clinical Notes (Mr Stapleton’s Affidavit 27 November 2019, Exhibit MVS-3).
In her written response to AHPRA of 28 June 2018, Dr Xu contended that she provided cosmetic treatment to complainant A on three occasions; being 28 January, 11 March and 22 April 2017.[8] She said that the treatments were accurately recorded in the contemporaneous clinic notes. She said she was a fellow of the Royal Australian College of General Practitioners and set out the training she had undergone in cosmetic injectables from 2016. She asserted on the basis of the outlined training that she was appropriately qualified to provide those treatments. She denied there was any asymmetry or that she persuaded Complainant A to have further filler into her lips but that she nevertheless agreed to provide further treatment at no charge.
[8]Each described as the first treatment, the second treatment and the third treatment.
She attached the consent form and described the discussion she had with the patient before the procedures.[9] Her letter also described follow up communication between the complainant, herself and nurses at CDC as well as communication between herself and nurses and the practice manager as to the complaint of a small white lump under the injected lip from the third treatment. The follow up communication included a visit to CDC by Complainant A on 27 May 2017. Dr Xu described the Complainant’s behaviour on that day as ‘aggressive, threatening and angry’.[10] She did not address any comments as to the inclusion of the 4 April date in the AHPRA letter.
[9]Plaintiffs’ Exhibit 1, Response from Dr Xu to AHPRA, 28 June 2018 (Mr Stapleton’s Affidavit 27 November 2019, Exhibit MVS – 5).
[10]Ibid [7(xxiv)].
On 26 November 2018 Dr Xu was advised by letter from AHPRA that it had completed its investigation into the complaint. Consistent with the issues for investigation it had identified, it made findings that she had obtained informed consent from Complainant A, that she was appropriately qualified and experienced to conduct the cosmetic procedures and that performance of the procedures was within the scope of her practice. It therefore determined to take no further action.
The Commissioner’s investigation
When the Commissioner referred the complaint in respect of Dr Xu to AHPRA, it notified Complainant A that it had closed the complaint file but that they would consider a request to re-open the file.[11] On 22 March 2018 the Commissioner was requested to re-open the file and assist the complainant to obtain financial compensation for her injuries.[12]
[11]Plaintiffs’ Exhibit 1, Letter from HCC to Dr Xu, 6 March 2018 (Mr Stapleton’s Affidavit 27 November 2019, Exhibit MVS- 1).
[12]Defendant’s Exhibit A, File note, 22 March 2018 (HT Affidavit (n 2), Exhibit RPHT-8).
On receipt of a complaint against a health service provider the Commissioner must make a number of decisions. She must decide whether or not to deal with a complaint.[13] If so she must prepare a formal description of the complaint[14] and provide that to the health service provider. She may request further information from various persons in order to decide how to deal with a complaint[15] and then decide whether a complaint is to be the subject of a complaint resolution process or an investigation.[16] She must give written notice under s 20 of any decision as to how to deal with a complaint.
[13]s 13 HC Act.
[14]In accordance with s 15 of the HC Act.
[15]s 18 HC Act.
[16]HC Act s 20(2)(a) or (b).
The Commissioner followed these steps and by letter dated 12 July 2018[17] the plaintiffs were informed of her decision to investigate the complaint against them. The Commissioner said she had formed a preliminary view that the applicants had breached the General Code of Conduct in respect of general health services and that it was therefore reasonable to investigate the complaint pursuant to s 45(e) of the HC Act.
[17]Plaintiffs’ Exhibit 1, Letter to Ms Weinstein from HCC 12 July 2018 (Mr Stapleton’s Affidavit 27 November 2019, Exhibit MVS – 6) (‘Weinstein letter’).
The letter set out 16 matters that the Commissioner understood from the evidence available at that time. Relevantly those matters canvassed the questions about:
(a) whether the second plaintiff and/or a person at CDC known as Dr Angela Xu administered cosmetic treatment on 11 March 2017 and 22 April 2017 which included injecting the complainant with Oxane;[18]
[18]The explanation for the omission of the 28 January 2017 treatment is because that date was before the Act came into operation. See Transcript of Proceedings, CDC Clinics Pty Ltd & Anor v Health Complaints Commissioner (Supreme Court, S ECI 2019 05205, Forbes J, 29 April 2020) 111.
(b) whether Ms Weinstein and/or CDC permitted Complainant A to be treated by Dr Xu when she did not have sufficient experience to do so;
(c) whether the use of Oxane in the treatment of Complainant A was safe in the circumstances; and
(d) whether accurate clinical records were kept of treatment on 11 March.[19]
The question of who had provided treatment on the relevant dates was an issue identified for investigation. At that time AHPRA had not concluded its investigation.
[19]Weinstein letter (n 17).
This letter of 12 July 2018 also advised the plaintiffs that the Commissioner was considering making an interim prohibition order against them pursuant to s 90 of the HC Act. CDC and Ms Weinstein were invited to make submissions in respect to the complaint.
The plaintiffs provided a written response to the Commissioner dated 16 July 2018 denying that Ms Weinstein had provided any of the cosmetic treatments and advising that Dr Xu had done so.[20] Ms Weinstein wrote that ‘Dr Xu and I are emphatic on our statement of the facts.’[21] The response also challenged the jurisdiction of the Commissioner to investigate as the treatment was said not to fall within the definition of health service and made reference to lack of jurisdiction to deal with a complaint about Dr Xu.
[20]Ibid.
[21]Ibid.
In investigating the issues identified above, the Commissioner interviewed and took a signed statement from Complainant A, interviewed Ms Weinstein and Dr Xu and considered the written responses and submissions, as well as considering the clinical notes, the emails[22] from the complainant between 30 April and 16 May 2017[23] and a video that Complainant A had taken of her visit to CDC on 27 May 2017.[24] The Commissioner also received advice concerning Oxane from the DHHS and from the Australian Society of Aesthetic Plastic Surgeons[25] (ASAPS) and the Therapeutic Goods Association (‘TGA’).
[22]Defendant’s Exhibit A, Emails between Complainant A and CDC Clinic (HT Affidavit (n 2), Exhibit RPHT-30).
[23]Transcript (n 18) 115.
[24]Transcribed and forms part of ‘HCC final report’ (n 1).
[25]Defendant’s Exhibit A, Advice from ASAPS to HCC, 13 September 2018 (HT Affidavit (n 2), Exhibit RPHT – 31).
Having considered the plaintiffs’ response, the first interim prohibition order was made on 17 August 2018[26] against both CDC Clinic and Ms Weinstein. Interim Prohibition Orders are published on the Commissioner’s website.[27] The order remained in force for 12 weeks.[28] It prohibited CDC and Ms Weinstein from ‘causing, directing or otherwise facilitating the following actions by any persons unless that person is a registered practitioner’. It covered action to ‘prescribe or administer to any person any drug, poison or substance, including but not limited to Oxane HD Silicone Oil /Oxane’ and the ‘prescription or administering of any drug, poison or substance or injecting or infusing any person with any substance’.[29]
[26]Plaintiffs’ Exhibit 1, HCC Interim Prohibition Order, 17 August 2018 (Mr Stapleton’s Affidavit 27 November 2019, Exhibit MVS-8); CB 20 (‘Interim PO’).
[27]HCC,‘ProhibitionOrders’(WebPage)< An interim prohibition order can only be made while the Commissioner is conducting an investigation. It can place limits on the provision of a general health service by a general health service provider. The maximum duration of an interim prohibition order is 12 weeks. See Defendant’s submission, ‘Outline of Submissions of the Defendant’, Submission in CDC Clinics Pty Ltd & Anor v Health Complaints Commissioner, S ECI 2019 05205, 1 April 2020 (‘Defendant’s Submissions’) [31].
[29]Interim PO (n 26).
On 18 August 2018 a Herald Sun article titled ‘Dr Skin faces probe’ was published which the plaintiff relies on in respect of ground 3. Relevantly it said:
….
The CDC Clinic in Armadale, of which Ms Weinstein is a director, has also been hit with a prohibition order by Victoria’s Health Complaints Commissioner, limiting the procedures it is allowed to perform.
The latest investigation is understood to centre on claims that Ms Weinstein recently botched facial implants…
Health Complaints Commissioner Karen Cusack could not release details of the complaint.
Ms Cusack was able, however, to confirm the complaint related to cosmetic treatments performed by Ms Weinstein and the CDC Clinic.
She said the prohibition order was over an allegation that the clinic breached a code of conduct by “failing to provide health services in a safe and ethical way…”[30]
[30]Plaintiffs’ Exhibit 1, Herald Sun Article, 18 August 2018 (Mr Stapleton’s Affidavit 27 November 2019, Exhibit MVS – 9).
Prior to the publication of the above article Ms Weinstein had lodged a complaint with the Ombudsman regarding the Commissioner’s failure to conduct her investigation expeditiously. By email dated 20 August 2018 she sought to expand this complaint to include the Commissioner’s conduct in making the statement to the Herald Sun alleging that the Commissioner had ‘not been impartial, fair and independent’ as required by the HC Act. The outcome of the Ombudsman’s complaint was not before me.
On 9 November 2018 a second set of interim prohibition orders[31] were made identical to the first and were again published on the Commissioner’s website.
[31]Interim PO (n 26).
On about 11 December 2018, the Commissioner gave the plaintiffs a draft investigation report. This set out the Commissioner’s preliminary findings that the plaintiffs had breached the Code of Conduct in respect of treatment on 11 March and 22 April 2017. In reaching that conclusion the Commissioner was satisfied that Ms Weinstein had provided, or assisted Dr Xu to provide, the treatments as alleged. She considered that Dr Xu could not be considered an ‘independent witness’ because Dr Xu ‘had a pecuniary interest in maintaining a financial relationship with CDC’. The plaintiffs were invited to respond to the draft investigation report and the proposed prohibition orders.
By letter dated 18 January 2019 the plaintiffs responded to the draft investigation. Notwithstanding the response pointing out inconsistencies and inaccuracies in Complainant A’s account of the cosmetic treatments and re-iterating that Dr Xu provided the cosmetic treatments complained of the Commissioner made final prohibition orders on 31 January 2019 (‘January orders’) against CDC and Ms Weinstein.
The January orders were in a more expansive form than the proposed prohibition orders that the Commissioner had provided to the plaintiffs. As a result, on 6 March 2019 the plaintiffs sought judicial review[32] pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 of the January orders.
[32]Order of the Honourable Associate Justice Daly in CDC Clinics Pty Ltd & Anor v Health Complaints Commissioner (S ECI 2019 00947, 13 June 2019).
By orders made 13 June 2019 Associate Justice Daly quashed the January orders, having regard to the joint memorandum in which both parties requested the Court make such orders as ‘the parties agree that the prohibition orders are vitiated by jurisdiction error because the Commissioner failed to afford the plaintiffs procedural fairness before making the Prohibition Orders.’[33] The denial of procedural fairness was that the final prohibition orders were substantively different to the Proposed Prohibition Orders (and the previous interim prohibition orders) and were significantly broader in scope. The plaintiffs were not given notice of (and therefore any opportunity to respond to) the scope of the Prohibition Orders that were ultimately made.[34] No other ground of procedural fairness was relied on.
[33]Plaintiff and Defendant’s Joint memorandum on proposed orders, 5 June 2019.
[34]Ibid.
Prohibition orders now under Review
Four days after the January orders were quashed, the Commissioner wrote to the plaintiffs and informed them that she proposed to make prohibition orders.[35] The orders were in the following terms:
[35]The prohibition orders proposed against Ms Weinstein and CDC Clinics were in essentially the same terms.
1 [The Plaintiff’s] must not:
(a) Provide clinical treatment to any person;
(b)Provide clinical advice to any person with respect to that person’s clinical treatment;
(c) assist any person (regardless of whether that person is registered under the Health Practitioner Regulation National Law (Victoria) Act 2009 as to the clinical treatment provided, or to be provided, to another person.
(d) direct or instruct any person (regardless of whether that person is registered under the Health Practitioner Regulation National Law (Victoria) Act 2009) as to the clinical treatment provided, or to be provided, to another person.[36]
[36]Plaintiffs’ Exhibit 1, Letter from HCC to Ms Weinstein, 17 June 2019, (Mr Stapleton’s Affidavit 27 November 2019, Exhibit MVS-16) (‘Letter from HCC re: the Report’).
In response, the plaintiffs provided submissions dated 29 July in which they said:
….
Ms Weinstein has repeatedly and consistently stated that she did not provide [complainant A] with any of the treatments and that Dr Angela Xu, a registered medical practitioner, provided all the treatments to KJ.
…
…the HCC has no jurisdiction to determine, inconsistently with AHPRA’s resolution of those aspects of the complaint, that Ms Weinstein provided the relevant treatments to KJ.
…the use of Oxane by a registered medical practitioner for the purpose of cosmetic treatments does not , in itself, present a risk to the public, sufficient to warrant immediate action.[37]
In response to the proposed scope of the prohibition order, the plaintiffs also raised a concern that the orders were too broad in that they would potentially prohibit Ms Weinstein from engaging in practice management tasks, not directly related to the treatment of patients.
[37]Plaintiffs’ Exhibit 1, Letter from Michael V Stapleton to HCC, 29 July 2019 (Mr Stapleton’s Affidavit 27 November 2019, Exhibit MVS-17).
Following receipt of the plaintiffs’ July submissions, the Commissioner wrote to the plaintiffs on 12 September 2019, providing them with a copy of the DHHS Advice[38] and advising that they were proposing to make an amendment to the proposed new prohibition orders so that Ms Weinstein’s duties as practice manager and laser safety officer will be excluded from the scope of the new orders.
[38]Defendant’s Exhibit A, Letter from the HCC to Ms Weinstein, 28 October 2019 (HT affidavit (n 2), Exhibit RPHT-45) (‘HCC reasons for decision letter’).
The plaintiffs made further submissions of 4 October 2019 responding to the letter of 12 September 2019 that said in part:
..As matter of both jurisdiction and fairness, the Commissioner cannot simply ignore AHPRA’s conclusion on this critical factual issue. Further, the Commissioner has never dealt meaningfully with the inconsistencies in [Complainant A’s] account of her treatment or the matters going to her credit which have been raised by CDC Clinics and Ms Weinstein.[39]
Secondly, as has been repeatedly stated….and has been accepted by AHPRA, Ms Weinstein did not provide the relevant treatments to Complainant A.[40]
Thirdly, the material before the HCC does not establish a serious risk to the health and safety of the public from the use of Oxane. There is no evidence that complainant A or any other patient suffered any significant or serious side effects from its use.[41]
….
It cannot be reasonable, fair or proportionate exercise of power for the Commissioner to make prohibition orders against CDC Clinics and Ms Weinstein for taking a position on the medical classification of Oxane which, based on AHPRA’s own analysis, is not unreasonable or baseless.[42]
The plaintiffs’ submissions also sought 3 days’ notice of the Commissioner’s intention to issue further prohibition orders, to enable the plaintiffs to determine whether to commence injunctive proceedings in this Court.
[39]Plaintiffs’ Exhibit 1, Letter from Michael V Stapleton to HCC, 4 October 2019 (Mr Stapleton’s Affidavit 27 November 2019, Exhibit MVS-19).
[40]Ibid.
[41]Ibid.
[42]Ibid.
On 28 October 2019, without further notice to the plaintiffs, the Commissioner made the Prohibition Orders against Ms Weinstein personally and CDC in the terms proposed.[43] The order has no finite period and remains in force until varied or revoked. It prohibits Ms Weinstein from providing clinical treatment to any person, clinical advice to any person with respect to that person’s clinical treatment, assisting any person regardless of whether that person is registered under the National Law, providing clinical treatment to another person or directing or instructing any person again regardless of whether that person is registered under the National Law as to the clinical treatment provided or to be provided to another person. It provides that, ‘for the purposes of this prohibition order clinical treatment includes but is not limited to medical procedures, surgical procedures and the administration of cosmetic injections; and, for the purpose of this prohibition order, clinical treatment excludes the usual duties of a practice manager and a laser safety officer’.[44]
[43]Plaintiffs’ Exhibit 1, HCC Prohibition Order, 28 October 2019 (Affidavit of Mr Stapleton 27 November 2019, Exhibit MVS-21).
[44]Ibid.
On the same day, the Commissioner provided an outline of her reasons for making the Prohibition Order prefaced by an explanation as to why she did not provide 3 days’ notice to the plaintiffs as per the request:
6.2 As a preliminary matter, in deciding to make the Prohibition Orders, I noted the request made by the legal representative for you and CDC to the effect that, if I decided to make any prohibition order in the matter, you and CDC be provided with three days’ notice in order to decide whether to seek relief in the Supreme Court. Having considered this request, however, I determined that it is not generally appropriate that notice of any decision to make prohibition orders be communicated in advance so that an affected party may consider their legal options. I note that the Prohibition Orders, in the form made, have already been provided to you and CDC and their proposed scope been canvassed and, as such, I have put you and CDC on notice of my intention to make the Prohibition Orders.
The Commissioner went on to set out her reasons for the decisions, relevantly that:
a)…It is open to and appropriate to find that notwithstanding the denials on the part of you and Dr Xu, [I] prefer [Complainant A’s] evidence as to the identity of the person who provided the relevant treatment to Complainant A.[45]
b)...It is open, in light of all the evidence and for the reasons set out in the Report to place less weight on Dr Xu’s evidence on the basis of her demonstrable pecuniary interest in CDC and the apparent similarities between her evidence and yours.[46]
c)…neither AHPRA nor the Medical Board positively ‘accepted’ that Dr Xu provided all relevant treatment to [Complainant A] with her informed consent.[47]
d)Maintained that the clinical records maintained by CDC are not reliable for the reasons set out in the Report.[48]
e)Maintained she was not persuaded there was any basis to conclude that [Complainant A] was improperly motivated for financial reasons to manufacture allegations against the Plaintiff.[49]
f)Was not satisfied that Complainant A had any form of health impairment that should be regarded as, of itself, giving rise to unreliability in any evidence she gave and ultimately she took the view that Ms Weinstein was not a credible witness as she was not truthful in her evidence.[50]
[45]HCC reasons for decision letter (n 38) [6.10].
[46]Ibid [6.11].
[47]Ibid [6.12].
[48]Ibid [6.14].
[49]Ibid [6.15].
[50]Ibid [6.16] [6.17].
Appeal Grounds
The chronology and summary set out above comes from the material tendered by the parties in this proceeding. The plaintiffs tendered four affidavits of Michael Vincent Stapleton[51] together with the exhibits, and the defendant tendered an affidavit of Mr Haller-Trost sworn 14 February 2020 together with its exhibits.
[51]Plaintiffs’ Exhibit 1, Affidavits and Exhibits of Mr Michael Stapleton dated 27 November 2019, 20 December 2019, 11 March 2020 and 14 April 2020.
The plaintiffs rely on three grounds of review outlined above at [2]: They seek a declaration that the prohibition orders dated 28 October 2019 purportedly made pursuant to ss 95 and 96 of the HC Act are null, void and of no legal effect. The plaintiffs also seek an order in the nature of certiorari quashing those prohibition orders.
The first ground contends that the Commissioner misapplied the jurisdiction to exercise her functions and powers when there has been a referral of the complaint (or part of it) pursuant to s 25 or s 26 of the HC Act. They contend that where a referral has been made, the AHPRA conclusion in respect of Dr Xu resolved the factual issue of who provided the cosmetic treatment to Complainant A so that it was not open to the Commissioner to exercise her power to make prohibition orders[52] on a factual basis inconsistent with AHPRA’s findings. This issue requires consideration of s 27 of the HC Act.
[52]Under Part 8 of the HC Act.
The second ground, that of legal unreasonableness is related to the first ground. This ground says that there was no reasonable basis to disbelieve Dr Xu’s account that she provided the relevant cosmetic treatments. This explanation had been accepted by AHPRA after investigation therefore it was unreasonable to be satisfied that Ms Weinstein performed or assisted in the cosmetic procedures as alleged.
The third ground of procedural fairness is essentially an argument that the decision maker might not bring an impartial mind to the decision before her because her decision demonstrated prejudgment. The prejudgment, or previously expressed adverse conclusion, was demonstrated by:
(a)The comments quoted in the Herald Sun article appearing on 18 August 2018;
(b)The January orders which contained strong and adverse credit findings against Dr Xu and Ms Weinstein;
(c)Failing to accede to the request for adverse notice of the decision in order to consider legal options; and
(d)Acting inconsistently with AHPRA’s ‘findings’.
Ground 1 – Jurisdiction to deal with a complaint where there has been a referral under s 150 of the National Law
Section 150 of the National Law provides:
Relationship with health complaints entity
(1)If the subject matter of a notification would also provide a ground for a complaint to a health complaints entity under a law of a participating jurisdiction, the National Board that received the notification must as soon as practicable after its receipt -
(a)notify the health complaints entity that the Board has received the notification; and
(b) give to the health complaints entity –
(i)a copy of the notification or, if the notification was not made in writing, a copy of the National Agency’s record of the details of the notification; and
(ii)any other information the Board has that is relevant to the notification.
(2)If a health complaints entity receives a complaint about a health practitioner, the health complaints entity must, as soon as practicable after its receipt –
(a)notify the National Board established for the practitioner’s health profession that the health complaints entity has received the complaint; and
(b) give to the National Board –
(i)a copy of the complaint or, if the complaint was not made in writing, a copy of the health complaints entity’s record of the details of the complaint; and
(ii)any other information the health complaints entity has that is relevant to the complaint.
(3)The National Board and the health complaints entity must attempt to reach agreement about how the notification or complaint is to be dealt with, including –
(a)whether the Board is to deal with the notification or complaint or part of the notification or complaint or to decide to take no further action in relation to it; and
(b)if the Board is to deal with the notification or complaint, the action the Board is to take.
(4)If the National Board and the health complaints entity are not able to reach agreement on how the notification or complaint, or part of the notification or complaint, is to be dealt with, the most serious action proposed by either must be taken.
(5)If an investigation or other action, other than conciliation, taken by a health complaints entity raises issues about the health, conduct or performance of a ‘registered health practitioner, the health complaints entity must give the National Board established for the practitioner’s health profession written notice of the issues.
...
(8) A written notice under subsection (5) or (7) must include –
(a)sufficient particulars to identify the registered health practitioner; and
(b) details of –
(i)the issues raised about the health, conduct or performance of the registered health practitioner; or
(ii)the health, conduct or performance action taken in relation to the registered health practitioner.
The complaint made to the Commissioner fell within s 150(2) of the National Law. Once APHRA requested referral, the Commissioner was required to refer the complaint by s 26(2) of the HC Act. Section 27 then provides:
Commissioner may continue to exercise certain functions and powers despite referral
Despite the referral of a complaint or a part of a complaint under section 25 or 26, the Commissioner may exercise any of the functions or powers of the Commissioner under the following provisions in relation to the complaint or the part of the complaint –
(a)Parts 4, 7 and 8 to the extent that the referred complaint or part of the complaint relates to a contravention by a general health service provider of a code of conduct applying to the general health service;
(b) Part 10.
Part 4 concerns investigations, Part 7 concerns the powers of the Commissioner to make public statements, Part 8 sets out the powers to prohibit or regulate the provision of general health services, including the making of prohibition orders.
The legislative scheme envisaged a separation between complaints about health practitioners which the National Board has power to deal with and complaints about general health providers which the Commissioner has power to deal with. Each body receiving a complaint must, if the complaint would also provide a ground of complaint to the other, notify each other. Section 150(3) requires an attempt to reach agreement as to how the complaint is to be dealt with.
The parties’ submissions
The plaintiffs submit that if there is agreement to refer a complaint to the National Board, then a decision of the Board ‘should take precedence insofar as it concerns allegations relating to a health practitioner’.[53] The outcome of AHPRA’s investigation was submitted to amount to a ‘finding’ on the factual dispute of who had performed the treatments complained of. As such it was not open to the Commissioner to exercise its powers of prohibition over a general health provider on a basis that was inconsistent with the AHPRA finding.
[53]Plaintiffs’ submission, ‘Plaintiff’s Outline of Submissions’, Submission in CDC Clinics Pty Ltd & Anor v Health Complaints Commissioner, S ECI 2019 05205, 9 March 2020 (‘Plaintiffs’ Submissions’) [70].
The defendant submits that, by its terms s 27 expressly contemplates that the investigation of and exercising of powers under Part 8 in relation to general health service providers may continue where there has been a referral of a complaint (or part thereof). A referral of a complaint regarding Dr Xu does not prevent the Commissioner continuing to exercise jurisdiction over the plaintiffs in respect of the complaint that was received. The defendant submitted first that AHPRA made no finding on the controversy as to who provided the relevant treatments. Second, even if it could be said that a factual finding was made, the Commissioner was not bound by that finding on a proper construction of s 27.
The plaintiff’s did not contend that the fact of referral by itself removed jurisdiction of the Commissioner to deal with the complaint. It was the outcome of that referral that did so. Both parties referred to the potential for overlap between jurisdictions and referred to the second reading speech. The Minister there said:
The bill acknowledges that the commissioner operates alongside a range of other regulatory bodies. Division 3 of part 2 provides that the commissioner must refer a complaint if it were more appropriate that it be made to another entity, such as the disability services commissioner or the mental health complaints commissioner.
The bill also recognises that there is significant overlap between the jurisdiction of the commissioner and the Australian Health Practitioner Regulation Agency and the national health professional registration boards established under the Health Practitioner Regulation National Law (Victoria). The Health Practitioner Regulation National Law (Victoria) describes a process for consultation and decision-making about which of the two entities takes precedence in dealing with a complaint. The bill is consistent with this process.
Importantly, the bill allows for the commissioner to continue to exercise particular functions and powers, despite the referral of a complaint to another entity. For instance, the commissioner may investigate and ultimately issue a prohibition order preventing a general health service provider from continuing to provide a general health service if they have breached a code of conduct and there is a serious risk to the health or safety of the public. (Emphasis Added)
The plaintiffs relied in particular on the underlined phrase in the second paragraph while the defendant relied on the third paragraph.
Analysis
I do not accept the argument that APHRA made findings in resolution of a factual dispute about whether Ms Weinstein or Dr Xu provided treatment. There are a number of factors that lead me to this conclusion. AHPRA had jurisdiction only to investigate the complaint as it referred to Dr Xu. On its face, the complaint dealt with Dr Xu’s actions on the second date (erroneously 4 April). The complaint regarding 28 January raised only the question of Dr Xu’s training and experience, not her actions. AHPRA were considering her qualifications and experience, and the information she provided to the consent obtained from Complainant A. Dr Xu herself advised AHPRA that she provided treatment on three occasions. Her response had the effect of conceding to the regulatory authority that her actions on those three dates were relevant to the investigation that it was conducting. In the absence of any contest by Dr Xu regarding the provision of treatment by her to Complainant A there was no factual contest for AHPRA to resolve. It then simply investigated pursuant to s 160 of the National Law, whether or not the treatment that Dr Xu says she undertook was unsatisfactory.
Further the outcome of the investigation by AHPRA was recorded simply as a decision to take no further action in relation to the issues identified in the referred complaints. In neither the issues for investigation nor the decision reached was there any mention of resolution of a factual controversy involving Ms Weinstein or CDC. The plaintiffs submit that a factual finding is to be inferred on the basis that AHPRA would not countenance a health practitioner standing by and permitting her patient to be injected by a non-qualified person. The precise terms of the investigation was communicated to Dr Xu and she responded to those terms. There is no basis to draw an inference about matters that were not explicitly the subject of investigation and response. If it was necessary to make factual findings in order to decide the matters in issue, those findings and the reason for them would be expected to be set out in the decision. The concession made by Dr Xu made it unnecessary to resolve any factual dispute.
Even if I am wrong in this conclusion and it could be said that AHPRA accepted that Dr Xu undertook three injections for Complainant A and this constituted a finding by it, I do not accept that such a finding binds the Commissioner as to that fact when neither the Commissioner nor the general health providers were a party to the AHPRA investigation. The wording of s 27 makes no reference to the effect of any findings under the National Law on the Commissioner’s exercise of powers in accordance with s 27.
The legislative direction to act co-operatively[54] is said to lead to a legislative identification of which decision takes precedence. The plaintiffs’ submission is that where there is an agreement to refer a complaint, precedence is given to the decision of the body to whom the complaint is referred, so that it is not open for the Commissioner later in time to act on a basis that is factually inconsistent with the first decision.[55] It is not correct to describe an agreement to refer, as the referral provisions are mandatory.[56]
[54]s 150(3) of the National Law.
[55]Plaintiffs’ Submissions (n 53) [73].
[56]s 150(1) and (2) of the National Law; s 25(2), s 26(2) HC Act.
Whilst there is overlap amongst the various regulatory bodies, there is also a clear delineation as to which body governs particular categories of health service providers. There is nothing in either legislation that precludes concurrent investigations or conciliations by health complaints entities and AHPRA in their respective areas of regulatory authority. The Commissioner is permitted to continue an investigation or regulation herself when a referral has been made.[57] Where there is a referral under s 150(1) or (2) of the National Law there is a direction to attempt to reach an agreement about how the notification is to be dealt with.
[57]s 27 of the Act.
There was no evidence of any agreement between the two regulatory bodies here as to how each would deal with the complaint. There was therefore nothing to prevent concurrent investigation of the complaint. In the absence of agreement between regulatory bodies achieved under s 150(3), the legislation determines the precedence of actions that might be proposed by the two bodies. The legislation doesn’t determine any precedence of decisions in the sense that the decision of one body is imposed upon another. Rather, it is the actions proposed by each, that are ordered in precedence by the legislation. Section 150(4) provides that the most serious action proposed by either entity must be taken.
AHPRA advised the Commissioner of the outcome of its investigation of Dr Xu on 26 November 2018. No action was proposed so s 150(4) is not called upon. It follows that in continuing to investigate and then take action by way of Prohibition Orders against CDC and Ms Weinstein, there was no error in apprehending the jurisdiction conferred by s 27. Ground 1 fails.
Ground 2: The decision to make the Prohibition Orders was legally unreasonable
This ground sets out five ways in which the decision was said to be legally unreasonable. The first overlaps with the third ground of review in that it was said to be unreasonable as it is vitiated by apprehended bias.[58] Secondly, a finding that Ms Weinstein provided the first and second treatments to Complainant A was said to be unreasonable in the face of AHPRA’s acceptance of Dr Xu’s statement that she performed the treatment.[59] Thirdly it was unreasonable where AHPRA had concluded that the administration of Oxane was an unsettled area of law and had taken no interim action against Dr Xu.[60] Fourthly, the Commissioner’s analysis of Complainant A’s credit and accuracy was unreasonable, irrational and arbitrary. Finally, there was no reasonable basis to disbelieve Dr Xu’s account and it was unreasonable to infer that Dr Xu would give false evidence.[61]
[58]Plaintiffs’ Amended Originating Motion for Judicial review, 15 April 2020 (‘Amended OM’), 4 [Ground 2(a)].
[59]Ibid 4 [Ground 2(b)].
[60]Ibid [Ground 2(c)].
[61]Ibid [Ground 2(e)].
As to the unreasonable exercise of her discretion to make the prohibition orders based upon a finding that Ms Weinstein had performed the treatment, when AHPRA had necessarily accepted and determined that Dr Xu had done so, counsel for the plaintiffs quite properly accepted that if the argument on construction of s 27 is not made out, then any unreasonableness by reference to the outcome of the AHPRA investigation could not be made out.
In relation to the use of Oxane, the Commissioner in her final report did not rely on the safety issues surrounding Oxane as a basis for making the prohibition orders, so the plaintiffs no longer relied on this as demonstrating unreasonableness.[62]
[62]Transcript (n 18) 99.
The power to make prohibition orders arises under s 95 of the HC Act. It is discretionary, exercised upon satisfaction by the Commissioner of matters set out in s 96. Section 96 provides that a prohibition order must not be made:
(a) unless –
(i)the Commissioner is satisfied that the general health service provider has contravened a code of conduct applying to the general health service; or
(ii)the general health service provider has been convicted or found guilty of a prescribed offence; and
(b)unless the Commissioner is satisfied that it is necessary to make the order to avoid a serious risk to –
(i) the life, health, safety or welfare of a person; or
(ii) the health, safety or welfare of the public.
The Commissioner was satisfied that the relevant code of conduct had been breached and that the prohibition orders were necessary to avoid the serious risk identified in s 96(b).
Reasonableness is a condition of the exercise of a discretionary power conferred by statute. As explained in Minister for Immigration and Citizenship v Li,[63] the decision must be one that is made according to reason and justice and is not ‘arbitrary, vague and fanciful’. Justice Gageler in Li said:
The implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made[64]
Reasonableness is concerned with ‘justification, transparency and intelligibility within the decision making process’ the why of the decision. It is also concerned with the how of the decision: whether it falls within a range of possible acceptable outcomes which are defensible in respect of the facts and the law. The scope, subject and purpose of the statutory scheme conferring the decision making power provides the context within which to assess reasonableness.
[63](2013) 249 CLR 332.
[64]Ibid [91].
The discretion is enlivened in this case when the Commissioner is satisfied there has been a contravention of the applicable code of conduct and there is a serious risk to life, health, safety or welfare of a person or the public. Leaving aside the issue of bias as raised by Ground 3, the remaining matters said to lead to unreasonableness are the findings of fact that underpin the exercise of discretion. The plaintiffs contend that the findings of fact: that Ms Weinstein injected Complainant A on 11 March 2017 and caused, directed and facilitated the injection of Complainant A on both 11 March and 22 April 2017 are unreasonable and irrational. It was submitted that this was because the decision maker failed to address inconsistencies in Complainant A’s account as had been highlighted in the submissions made by CDC and Ms Weinstein, and because there was no reasonable basis to disbelieve Dr Xu’s account.
The Commissioner concluded that Dr Xu was not an ‘independent witness’. The investigation report dated 31 January 2019 set out a number of matters regarding Dr Xu’s evidence from the investigation. The documentary records produced by CDC and Dr Xu were set out in full in the report. Additionally the Commissioner had the written response made by Dr Xu to AHPRA and set out what it considered were pertinent aspects of that response. The report also set out relevant extracts of the Commissioner’s interview with Dr Xu. Under the heading ‘Analysis and Findings’ the Report set out the observations about Dr Xu’s account.
Relevant to her experience in performing cosmetic injections the Commissioner noted Ms Weinstein’s submission that Dr Xu had been ‘performing 100’s of them’, with Dr Xu’s evidence to AHPRA ‘since early 2016 performed about 80… per month’. It contrasted this with Dr Xu’s evidence at interview of not performing any injections before starting at CDC where she worked two days per week. The three estimates of experience varied. This led to a conclusion by the Commissioner that Dr Xu was not an experienced injector of Oxane. It was on this basis it concluded that Dr Xu was likely to have sought guidance and advice from Ms Weinstein. Equally it accepted on this basis, that it was plausible that Dr Xu watched and learned from Ms Weinstein and was directed by Ms Weinstein as Complainant A had alleged.
It had noted from Ms Weinstein’s own evidence that she was on occasion called in while treatment was being provided by practitioners at CDC, in order to provide an opinion or information. Ms Weinstein had described that sometimes ‘if [Dr Xu] can’t see what the problem is. She’ll sometimes get another opinion. She’ll often ask the nurses. Sometimes [she] asks me.’[65] Finally the Commissioner was critical of the medical records. They did not record significant events about the 22 April 2017 treatment including a number of matters outlined in the response provided by Dr Xu to AHPRA in June 2018. When Complainant A came in to the clinic five weeks after the third treatment and complained, Dr Xu told the Commission interviewer ‘I can’t match who is this patient’. This was to explain why the complaint that it was Ms Weinstein who had performed the injection was not corrected at that time with the patient. The Commissioner therefore concluded that neither the clinical records nor Dr Xu’s recollection of events were sufficiently reliable to resolve the factual contest between Ms Weinstein and Complainant A.
[65]HCC final report (n 1) [32].
It was open to the Commissioner and not unreasonable to disregard Dr Xu’s evidence as unreliable.
Credit of Complainant A
The plaintiffs contend that the Commissioner’s failure to engage with the arguments raised about Complainant A’s credit were unreasonable. The arguments as to credit were that Complainant A was motivated to receive financial compensation, that she had or may have a mental health condition and that her statement had ‘at least 22 inconsistencies’ which were detailed in the response provided by the plaintiffs. Those inconsistencies were largely variations between Complainant A’s statement and documentation such as the clinic records. They are better described as contested facts. The few inconsistencies within the statement itself that were identified went to things such as: on the one hand the statement said Ms Weinstein was not in the room at the time Dr Xu gave the injection on 22 April and the statement that after the injection Ms Weinstein told her that she needed to buy further Oxane to correct the divots. This was said to be an example of inconsistent statements.
The Investigation report set out seven emails sent by Complainant A to CDC in April and May of 2017. Those emails all made reference to injections performed by ‘Cynthia’ and a Dr Angela who was watching and learning and who then injected the lip before calling Cynthia in to the room. The report also set out extracts from an audio recording taken when Complainant A attended CDC on 27 May 2017 and spoke to Dr Xu and to Ms Weinstein. Ms Weinstein suggested that Complainant A was deliberately and dishonestly making an allegation against her and CDC ‘to blackmail [the clinic] for money’.[66]
[66]Quoting from the interview with Ms Weinstein. Ibid [113].
The Commissioner determined that the various descriptions given by Complainant A of the events, both before and after complaining to the Commissioner were broadly consistent throughout in material ways. The Commissioner found no support for the submission that Complainant A was motivated to deliberately misdescribe events for financial gain. The Tribunal was left with the direct conflict between the evidence of Ms Weinstein and Complainant A. Acceptance of Dr Xu’s evidence was one path of reasoning to resolve that conflict. The unreliability of Dr Xu’s recollection and her lack of independence from CDC given the ongoing work arrangement were reasons why the Commissioner did not use this path of reasoning. The absence of any correction by the plaintiffs or Dr Xu in the emails and conversations with the complainant in 2017 was also a factor. There was nothing illogical or unreasonable about that. Indeed, given Ms Weinstein’s adoption in her very first response to the Commissioner, before the AHPRA investigation had been carried out, that ‘it is worth emphasising at the outset that Dr Xu and I are emphatic on our statement of the facts’, the Commissioner might be thought prudent, in light of all the evidence, not to place too much weight on Dr Xu’s evidence as being independent.[67] The Commissioner placed less weight on Dr Xu’s recollections in its findings for reasons that were intelligible.
[67]Plaintiffs’ Exhibit 1, Letter from HCC to Ms Weinstein, 28 October 2019 (Mr Stapleton’s Affidavit 27 November 2019, Exhibit MVS-20) (‘Reasons for decisions letter’)[6.11].
Ultimately the Commissioner had to make a finding on the conflict between Complainant A’s assertion and Ms Weinstein’s denial. To do so required an assessment of the credit of each, weighed in light of all other matters. The reasons for preferring the evidence of Complainant A and for finding that Ms Weinstein was not a credible witness were cogent. There was nothing to demonstrate a lack of reason within the limits set by the subject, scope and purpose of the HC Act. Ground 2 is not made out.
Ground 3 – Apprehended Bias
The third ground of review contends an apprehension of bias by the Commissioner in making the prohibition orders. The applicable principles were not in dispute. A claim of apprehended bias made against a judge applies the test set out in Ebner v Official Trustee in Bankruptcy:
A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[68] (citation omitted)
[68](2000) 205 CLR 337, 3 [6].
This test also applies to administrative decision makers.[69] When applied to administrative decision makers it is necessary to ‘recognise and accommodate differences between court proceedings and other kinds of decision making’.[70] It is a test which has a flexible quality to it, taking account of the statutory context and purpose of the decision maker. The purpose of the principle is to protect the independence and impartiality of a decision maker as well as the public perception of that impartiality.
[69]Ibid 2 [4].
[70]Ibid. See also Isbester v Knox City Council (2015) 255 CLR 135.
The apprehension of bias by the fair minded lay observer must be a real possibility. It is neither elevated to a probability, nor established on a possibility demonstrated by ‘a vague sense of unease or disquiet’.[71] The real possibility though, is brought about by a double ‘might’: the bystander might reasonably apprehend that the decision maker might not bring an impartial mind. In CNY17 v Minister for Immigration and Border Protection Nettle and Gordon JJ said:
The test has two steps. First, one must identify what it is that might lead a decision-maker to decide a case other than on its legal and factual merits. What is said to affect a decision maker’s impartiality? Partiality can take many forms, including disqualification by direct or indirect interest in the proceedings, pecuniary or otherwise; disqualification by conduct; disqualification by association; and disqualification by extraneous information. As Deane J said in Webb, in relation to disqualification by extraneous information, “knowledge of some prejudicial but inadmissible fact or circumstance [may give] rise to [an] apprehension of bias”. Second, a logical connection must be articulated between the identified thing and the feared deviation from deciding the case on its merits. How will the claimed interest, influence or extraneous information have the suggested effect?[72]
[71]Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 (‘Jia Legeng’)[549] (Kirby J).
[72](2019) 375 ALR 47, 61 [57] (citations omitted).
The plaintiffs submit that a reasonable bystander may apprehend that the Commissioner might have prejudged the outcome of the investigation. The prejudgment is demonstrated by an apprehension that conduct shows that the Commissioner was ‘so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be prescribed.’[73]
[73]Jia Legeng (n 71) 532 [72].
In Minitser for Immigrations and Multicultural Affairs v Jia LeGeng, Hayne J made the following observations about the prejudgment of a decision maker, with Gleeson CJ and Gummow J expressly agreeing:
Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that a decision maker has an opinion on a relevant aspect of the matter in issue in a particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.[74]
[74]Ibid 564 [185] (Hayne J).
The contention that a decision maker will apply the opinion without fresh consideration, where fresh consideration of the facts and arguments is required is now considered a third step in application of the principle.
The plaintiffs rely on four matters which they say, acting cumulatively on the fair minded lay observer, give rise to an apprehension of bias in the form of prejudgment. No actual bias is alleged. The prejudgment was of an adverse view by the Commissioner, from the outset, of Ms Weinstein’s credit. This arose in the four ways set out above at paragraph [40].
The first matter was the comment by the Commissioner reported in the Herald Sun article. It was submitted that the Commissioner informed the newspaper that Ms Weinstein had provided the treatment under investigation. The complaint was in the public domain by virtue of the publication of the Interim Prohibition orders on the Commissioner website the day before, which may explain why the Commissioner made a comment at that time. The statement records only a fact, not an opinion or conclusion. That fact was there was a complaint under investigation that Ms Weinstein and the CDC Clinic had performed certain treatment. The article made reference to an ‘investigation’, a ‘claim’ and an ‘allegation’ all of which language suggests no decision has yet been reached.
The public confirmation of the fact of a complaint against Ms Weinstein could not be said to be the expression of a conclusion or opinion, regarding the outcome of the investigation that was underway. Whilst the denial by CDC and its director was not reported, its absence does not transform a statement of fact to a conclusion demonstrating prejudgment. I disagree that the informed bystander might apprehend that the published comment might be prejudgment.
The second aspect of prejudgment arose from the adverse credit findings contained in the final investigation report. The Commissioner set out Ms Weinstein’s background and regulatory history at paragraph 12 in the final investigation report and issued Final Prohibition orders on the same date. Those orders were quashed by Associate Justice Daly upon a minute of consent by the parties. The basis for the consent order was that the prohibition orders were wider in scope than the proposed orders which Ms Weinstein and CDC were given an opportunity to comment on, thereby giving rise to a lack of procedural fairness. The making of adverse credit findings, or the unfavourable outcome of the investigation does not indicate bias or an apprehension of bias.[75] Nevertheless, it was submitted that on reconsideration whether to make further orders, the commissioner might not bring an impartial mind because of the findings previously contained in the final investigation report.
[75]SZCOS v Minister for Immigration & Citizenship [2008] FCA 570, 10 [36].
Neither the Herald Sun comments nor the adverse credit findings made in the investigation were relied on to demonstrate a lack of procedural fairness in challenging the January prohibition orders. The investigation and its outcome were part of the statutory process to be followed before Orders could be made. No part of the investigation was challenged for want of procedural fairness. A fair minded lay observer is taken to understand the statutory process. I do not accept that a consent to setting aside the prohibition orders on the basis of a specified ground of procedural fairness, might lead to an apprehension that the Commissioner might approach the reconsideration of her statutory task with a lack of impartiality.
The process of publication of interim orders and an investigation process preceding the making of final orders requires the Commissioner to form a belief and then a state of satisfaction of certain matters. That requires the communication of the belief formed or the state of satisfaction that has been arrived at to a person affected. Such communication does not amount to prejudgement unless it can be shown that that state of satisfaction or belief will be applied without giving ‘fresh consideration in light of whatever may be the facts and arguments relevant’.[76]
[76]Jia Legeng (n 71) [185] (Hayne J’s third contention).
The third aspect of prejudgment was a refusal to accede to the request for notice of the intention to make Prohibition orders. The HC Act sets out a structured process of decision making. At various stages, particularly where it is proposed to make decisions affecting a person, the Commissioner is obliged to give that person an opportunity to make submissions.[77] The Commissioner followed those procedures, inviting submissions on the draft investigation report and on the proposed orders both interim and final. In relation to the final orders that were contemplated after quashing the January orders, the Commissioner wrote:
I have not reached any concluded view as to whether any Prohibition Orders should be made, nor the scope of such Prohibition Orders, and I will consider any material or submissions provided by you before reaching any conclusion.
Following the investigation, and in light of the evidence obtained of serious breaches of the Code by you and CDC, I am presently of the view that the First Consideration is established.
As to the Second Consideration, in light of the findings set out in the Report, I am presently concerned that it is necessary to make a Prohibition Order to avoid a serious risk to the health, safety and welfare of the public.
In particular, I am presently concerned that you will not take the steps necessary to ensure that any cosmetic medical procedures you offer or provide will be provided safely, ethically or otherwise in accordance with the Code.[78]
[77]s 59(2) HC Act.
[78]Letter from HCC re: the Report (n 36).
The response made reference to the scope and impact of the proposed orders. The Commissioner was responsive to that submission. The Commissioner wrote again, identifying two issues that she wished to raise before making a decision. One issue related to the use of Oxane, the other was a proposal to vary the orders to exclude practice management tasks as the submissions had identified. The plaintiffs submission had assumed a further opportunity to be heard in respect of any variation in the proposed orders and this opportunity was afforded to them by letter dated 12 September 2019.[79] Further submissions were received. They included the request for notice in order to seek injunctive relief from the proposed orders if, despite the plaintiffs’ submissions the orders were to be made.
[79]Plaintiffs’ Exhibit 1, Letter from HCC to Ms Weinstein, 12 September 2019 (Affidavit of Mr Michael Stapleton 27 November 2019, Exhibit MVS-18).
The plaintiffs submit that the failure to give the requested three days’ notice so that the plaintiffs could seek injunctive relief gave rise to an apprehension of bias. There is no suggestion that in failing to accede to the request, the Commissioner was doing anything other than follow the normal practice in making orders having given notice of what was proposed. The request seeks a special departure from the Commissioner’s normal process and statutory obligations. In the circumstances a failure to accede to the request so that injunctive relief could be considered does not in my view give rise to any real possibility of an apprehension of bias.
The fourth aspect amounting to an apprehension of prejudgement is identified as arising from a determination to reach a conclusion inconsistent with the AHPRA finding. This aspect overlaps with the arguments raised in support of ground 1. As I concluded the Commissioner is not bound by the outcome of the AHPRA investigation into Dr Xu, there is no bar, and indeed a statutory obligation to consider the complaint on its merits.
Associated with this fourth aspect, the plaintiffs also rely on the approach taken by the decision maker to assessing the credit of Complainant A. They submitted that there was a failure to intellectually engage in the assessment such that it gave rise to an apprehension of bias. The plaintiffs’ submissions[80] contained an annexure of inconsistencies comprising 22 paragraphs. The decision to make the further prohibition orders made reference to an analysis of the alleged inconsistent statements. The analysis was a memorandum provided by a Commissioner’s Senior Investigator. Its purpose was ‘to seek your [the Commissioner’s] decision to deliver the final investigation report’ and ‘on the exercise of your power to make prohibition orders’. [81] It contained a table addressing the 22 paragraphs and noting each relevant statement of Complainant A, the CDC/Weinstein submission on that statement and the Commissioner staff comment. Generally the Commissioner comments went to whether the matters raised were in fact properly characterised as inconsistencies in Complainant A’s account, or inconsistencies with the CDC records, or to matters where the Commissioner was not compelled to make a specific finding on the evidence. Each individual inconsistency alleged was relevant in that it had the capacity to bear on the credibility of the complainant overall.
[80]Plaintiffs’ Submissions, ‘Plaintiff’s Reply’, Submission in CDC Clinics Pty Ltd & Anor v Health Complaints Commissioner, S ECI 2019 05205, 14 April 2020, Annexure A.
[81]Plaintiffs’ Exhibit 1, Letter from Defendant’s to Plaintiffs’ Solicitors, 25 March 2020 and attached memorandum 31 January 2019 (Affidavit of Mr Stapleton 14 April 2020, Exhibit MVS-35).
When the Commissioner gave reasons for making further prohibition orders on 28 October 2019,[82] she referred to the analysis of the alleged inconsistent statements. The memorandum was provided in March 2020 on request with the explanation that it had been overlooked when responding to the initial request for documents relied on by the Commissioner.
[82]Reasons for decisions letter (n 67).
I do not accept that the Commissioner staff memorandum demonstrates a blanket refusal to engage with the substance of the credit issues raised. Rather it demonstrates an engagement with the minutiae of the contrasting evidence in the exercise of resolving the conflicts in that evidence. Nor can a failure to provide the attachment at the time, said by the solicitor to be attributed to an oversight, which was corrected on request, be said to bespeak prejudgment.
The nature of the statutory task was to reach a degree of persuasion (satisfaction) that a value laden standard is met. Having reached that stage of satisfaction, the decision maker is not required to ignore this when subsequently turning their mind to further orders with reference to the same conduct that had been investigated.
None of the elements relied on individually nor cumulatively amount to a demonstration of a mind committed to a conclusion already formed or incapable of alteration whatever evidence or arguments may be prescribed.
Finally criticism was made of the failure by the Commissioner to put evidence before the Court in response to the plaintiffs allegations as to conduct. There is no allegation of actual bias and so evidence of the actual considerations that might be amenable to evidence do not arise. The decision maker has provided reasons and from the perspective of the fair minded lay observer, the conduct and reasons on their face require evaluation. Further evidence by the decision maker does not assist that process. It is the perspective of a fair minded lay observer to which an apprehension is directed and I draw no adverse inference from any absence of evidence on the part of the Commissioner. Ground 3 is not made out.
In the event that I was persuaded that an apprehension of bias might arise, the defendant argued that the plaintiffs had waived their right as they had failed to make a ‘clear objection’ to the comments at the time.[83] The plaintiffs resisted this pointing to specific occasions where the impartiality of the Commissioner was raised. While it is not necessary to determine this in light of my conclusions on ground 3, I should observe briefly that the plaintiffs did raise issues of impartiality in their complaint to the Ombudsman. However subsequently references in submissions to the Commissioner were to the requirement to act impartially rather than alleging a failure to do so. Importantly an apprehension of bias was not a ground of challenge to the January Prohibition orders. In those circumstances any conduct prior to the quashing of the January Prohibition orders, either individually or cumulatively, would not in my view, have been made in terms plain to the decision maker that she was being asked to consider her ability to decide the matter impartially.
[83]Relying on the comments of Brennan, Deane and Gaudron JJ in Vakauta v Kelly (1989) 167 CLR 568 [572].
The Originating Motion will be dismissed. I will receive minutes of consent or alternatively written submissions on the question of the appropriate orders to be made.
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