Crewdson v New South Wales Health Department Medical Appeals Panel (EOD)

[2001] NSWADTAP 11

Appeal Panel

CITATION:	Crewdson -v- New South Wales Health Department Medical Appeals Panel (EOD) [2001] NSWADTAP 11
PARTIES:	APPELLANT Gerard Crewdson RESPONDENT NSW Health Department Medical Appeals Panel
FILE NUMBER:	009017
HEARING DATES:	25/10/2000
SUBMISSIONS CLOSED:	10/25/2000
DATE OF DECISION:	05/04/2001
DECISION UNDER APPEAL:	Crewdson -v- New South Wales Health Department Medical Appeals Panel
BEFORE:	Latham M - DCJ (Deputy President); Goode P - Judicial Member; Nemeth de Bikal L - Member
CATCHWORDS:	abuse of power - relevant/irrelevant considerations
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	991073
DATE OF DECISION UNDER APPEAL:	05/11/2000
LEGISLATION CITED:	Anti-Discrimination Act 1977 Health Administration Act 1982 Public Sector Management Act 1988
CASES CITED:	Re NSW Corporal Punishment in Schools Case (1986) EOC 92-160 Darren Plumb & Michael Thurkettle v Commissioner for Corrective Services & Central Sydney Area Health Service EOC, 27 Jan 1998
REPRESENTATION:	APPELLANT In person RESPONDENT A Moses, barrister
ORDERS:	1. The appeal is dismissed.

REASONS FOR DECISION

1 The appellant appeals against a decision of the Tribunal dismissing a complaint of discrimination on the grounds of a presumed psychiatric disability against the NSW Department of Health Medical Appeals Panel. In particular, the appellant alleged a contravention of sections 49M, 50 and 52 of the Anti- Discrimination Act 1977 (the AD Act).

2 The history of the matter before the Tribunal was set out at paras 3 to 13 of the decision. It was noted that two other related but separate complaints had been settled and that a Deed of Release between the appellant, the State of NSW and the Central Area Health Service had been executed, prior to the complaint against the present respondent coming to hearing. Thus, one issue which was foreshadowed was whether the appellant was barred from bringing the instant complaint before the Tribunal by the execution of the Deed.

3 Be that as it may, a quite distinct issue emerged at the commencement of the hearing on 10 May 2000, namely whether the named respondent was a legal entity capable of being a respondent to a complaint. It was this issue which occupied the Tribunal for substantially the whole of the hearing and which was ultimately the issue upon which the Tribunal’s decision turned. The Tribunal concluded that the respondent’s reliance on previous decisions of the Tribunal, in support of its contention that the named respondent was not a legal entity, was well-founded.

4 The appellant filed extensive written submissions on the appeal and supplemented them orally at the hearing. The “predominant error of law” by the Tribunal, according to the appellant, was that the Tribunal exercised its power for an improper purpose. The alleged improper purpose consisted of “an unwillingness to hear [the appellant’s] case against the Medical Appeals Panel on its merits and in accordance with the statutory purposes of the Act [and] an intention to defeat [the appellant’s] assertion of statutory rights under the Act.” (para 74 of the appellant’s written submissions)

5 Four other grounds of appeal were addressed, although they were expressed as subsidiary to the above ground. They were:-

(i) the Tribunal identified a wrong issue, namely the identity of the parties.
(ii) the Tribunal asked a wrong question, namely whether the Medical Appeals Panel and/or the NSW Department of Health is a legal entity, capable of being sued.
(iii) the Tribunal made an erroneous finding, namely that the NSW Department of Health and the Medical Appeals Panel lacked any capacity to be sued (paras 23, 25, 27 and 28 of the decision).
(iv) the Tribunal reached a mistaken conclusion, that is, the same as for (iii).
It appears to the Panel that grounds (i) and (ii) allege the same error of law, and that grounds (iii) and (iv) allege the same error of law. Accordingly, it is convenient to deal with grounds (i) and (ii) together and grounds (iii) and (iv) together.

Grounds (i) and (ii) : The Tribunal identified the Wrong Issue

6 The jurisdiction of the Tribunal is determined by the terms of the complaint referred to it by the President of the Anti-Discrimination Board. More particularly, the Tribunal derived its jurisdiction in this matter from s 91(2) of the Anti Discrimination Act 1977. What is referred under that provision is the written complaint to the Board, together with the President’s report. A complaint is one lodged under s 88(1) of the AD Act, that is, “a complaint in writing in respect of any contravention of this Act or the regulations which is alleged to have been committed by a person.” Moreover, section 87 of the AD Act defines a respondent as “the person or each of the persons against whom [the] complaint is lodged.” The term “person” includes an individual, a corporation and a body corporate or politic (s 21 of the Interpretation Act 1987).

7 It has been held that ss 87 and 88 do not impose a requirement upon the complainant to correctly name the respondent(s) when lodging the complaint, although when taken together, they clearly require that the nature of the alleged contravention of the Act be specified and that the respondent(s) be capable of being identified as the person or persons responsible for the alleged contravention. In the event that the respondent is not correctly named or identified in the initiating complaint to the Board, it may be appropriate for the President of the Board to do so : Re NSW Corporal Punishment in Schools Case (1986) EOC 92-160. To the extent that Mathews J (as she then was) indicated in Re NSW Corporal Punishment in Schools Case that it may be appropriate for the Tribunal, during the course of an inquiry pursuant to a referral, to identify persons not named in the initiating complaint as being persons responsible for the alleged contraventions, those remarks were obiter. The respondents in Re NSW Corporal Punishment in Schools Case were correctly named and identified in the points of claim before Mathews J. They had not been so named and identified when the complaints were lodged. Whatever be the position with respect to nominating the respondent, it has never been disputed that ultimately, respondents must be persons or organisations accessible to the enforcement procedures laid down by the AD Act.

8 The appellant at all times identified the Department of Health Medical Appeals Panel as the respondent in his complaint to the Board, and before the Tribunal, and before the Panel. There was no mistake on his part. He identified and named the Medical Appeals Panel, within the Department of Health, as “the person” allegedly responsible for discrimination against him in the provision of a service, on the grounds of a presumed psychiatric disability, and for aiding and abetting his employer’s discrimination against him on the same grounds, and for aiding and abetting his employer’s victimisation of him. The issue facing the Tribunal was not one associated with identifying the correct respondent, in circumstances where, for example, the complainant alleges a contravention of the Act but cannot choose between an individual respondent and the corporation at whose behest the individual has acted. Rather, the issue was whether the respondent, identified and named by the appellant, had any legal personality which rendered it capable of being sued. In other words, the issue was whether the named respondent satisfied the definition of “person” and was amenable to the Tribunal’s orders.

9 It is central to an appreciation of this ground of the appeal to re-visit some of the exchanges between the appellant and the Tribunal. At p 3 of the transcript of the hearing, the presiding judicial member (Mr Bartley) asks the appellant to identify the respondent to the complaint. The appellant replies “it’s against the Medical Appeals Panel, Department of Health” to which the judicial member responds “there’s documents on the file saying that they’re not a legal entity.” At p 9 of the transcript, the appellant is recorded as saying :-

“I have argued that the Department of Health is a legal entity and it’s being a statutory corporation under the Health Administration Act 1982. Secondarily, I am arguing that the Medical Appeals Panel is part of the Department of Health and therefor, ….. it is part of being the legal entity which is the Department of Health.”

There follows a lengthy discussion between the Tribunal, the respondent’s counsel (Ms Anderson) and the appellant, which further highlights the respondent’s principal argument and objection to the proceedings. At p 19 of the transcript, this exchange takes place :-
Bartley : “The situation is then if Mr Crewdson sought to amend his respondent to the State of NSW I gather you’d have no objection.”
Anderson :”If he amends his application to the State of NSW I imagine that I could get instructions to accede to that.”
Applicant : “Excuse me, I’m not amending my complaint at all, I have correctly named the complaint …”
Further, at p 25/26 of the transcript ;-
Bartley : “You’re saying that … you have sued a body that’s legally liable, … sued a body that is competent to be sued, is that right ?”
Applicant : “Yes”
Bartley : “And you don’t propose to make any application to amend your application to the State of NSW as respondent ?”
Applicant : “No”
Again, at p 29 of the transcript :-
Bartley : “I gather at this stage Mr Crewdson that in reply to Ms Anderson you want to maintain your application in the form of the way you lodged it, … is that correct ?”
Applicant : “I think it’s been perfectly correct all along.”
(See also paras 14-16 of the decision)

10 These passages demonstrate that the appellant made a calculated and deliberate strategic decision. From the earliest stages of the Tribunal’s inquiry, he was made aware of the “fatal flaw” in his choice of respondent. He was given a number of opportunities to amend his pleadings so that the State of NSW could be substituted as the proper respondent. He declined them all. It is difficult to escape the conclusion that he exercised that choice, and maintained it in the face of repeated warnings, because he knew that if he were to substitute the State of NSW for the NSW Department of Health Medical Appeals Panel, the Deed of Release which he had executed in respect of related matters would be squarely raised as a bar to any further proceedings. Far from exhibiting the genuine bewilderment of unrepresented complainants when confronted with legal technicalities, the Panel is persuaded that the appellant fully appreciated the consequences of his conduct of the matter before the Tribunal. The Tribunal was entirely justified in taking the approach which it took. The appellant has failed to establish any error of law in this regard.

Grounds (iii) and (iv) : the Tribunal Erred in Concluding that the Respondent Lacked Capacity to be Sued.

11 The appellant addressed these grounds on the basis that the Department of Health and the Medical Appeals Panel were each respondents to his complaint. Whilst the conduct of the matter before the Tribunal was not entirely consistent in this regard, the Tribunal’s decision canvassed the legal status of both the Medical Appeals Panel and the Department of Health (paras 25-29 of the decision).

12 The Medical Appeals Panel is not an individual, a corporation or a body corporate or politic. A search of the Acts and regulations governing the administration and operation of health services in NSW fails to reveal any reference to it. According to the appellant’s submissions, it is a body within the Department of Health which provides an avenue of appeal from a decision by HealthQuest, which itself forms part of the Department of Health. In other words, the Medical Appeals Panel is an internal review mechanism.

13 The Department of Health was established by s 6 of the Health Administration Act 1982 which also provides that the Director-General and certain other members of staff constitute the Department of Health. Section 4 of the Act defines “Department” as the Department of Health and "Corporation" as the Health Administration Corporation constituted by section 9 of the Act. Thus the Act draws a clear distinction between the Department (not being a corporation) and the body known as the Health Administration Corporation. It goes without saying that the Department is not an individual or a body politic.

14 The Department is a NSW government department for the purposes of the Public Sector Management Act 1988. The latter Act regulates the employment of public servants within government departments, that is, within the instrumentalities of the Crown, as employees of the Crown. The Crown Proceedings Act 1988 provides that proceedings brought against the Crown are brought against the State of NSW. In short, the Health Administration Act and the Crown Proceedings Act make it abundantly clear that the proper respondent to the appellant’s complaint was the State of NSW ; see Darren Plumb & Michael Thurkettle v Commissioner for Corrective Services & Central Sydney Area Health Service EOC, 27 Jan 1998.

15 It follows that the Tribunal were correct in concluding that the Department of Health and the Medical Appeals Panel lacked the capacity to be sued. There was no abuse of the Tribunal’s power. It “searched for a way to have the case heard on its merits” (para 30 of the decision) but was confronted with the appellant’s intractable attitude to the suggestion that the pleadings be amended in order to allow a hearing on the merits to proceed.

16 The appeal is dismissed.