Henkelman v Psychology Council of New South Wales (No 2)

[2018] NSWSC 818

Supreme Court

New South Wales

Medium Neutral Citation:	Henkelman v Psychology Council of New South Wales (No 2) [2018] NSWSC 818
Hearing dates:	31 May 2018
Date of orders:	31 May 2018
Decision date:	31 May 2018
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	(1)   The application is dismissed; and (2)   Mr Henkelman is to bear the Council’s costs as agreed or assessed.
Catchwords:	CIVIL PROCEDURE – application for dismissal for want of due despatch – where plaintiff does not appear – application granted – proceedings dismissed
Legislation Cited:	Civil Administrative Tribunal Act 2013 (2013) Civil Procedure Act 2005 (NSW) Health Practitioner Regulation National Law (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Henkelman v Psychology Council of Australia [2017] NSWCATOD 161 Henkelman v Psychology Council of Australia (Supreme Court (NSW), Fagan J, 22 March 2018, unrep) Henkelman v Psychology Council of Australia [2018] NSWSC 800
Category:	Principal judgment
Parties:	Steven Michael Henkelman (Plaintiff) Psychology Council of New South Wales (Defendant)
Representation:	Counsel: Mr S Benson (Defendant) Solicitors: Mr S Henkelman, unrepresented (Plaintiff) Health Professional Councils Authority (Defendant)
File Number(s):	2017/372496
Publication restriction:	Nil
Decision under appeal	Court or tribunal: NCAT Citation: [2017] NSWCATOD 161 Date of Decision: 8 November 2017 Before: R C Titterton, Principal Member File Number(s): NCAT 2017/66101

EX TEMPORE JUDGMENT

1. HER HONOUR: In November 2016, after an inquiry under s 150 of the Health Practitioner Regulation National Law (NSW) the Psychology Council of Australia imposed conditions on Mr Henkelman's registration as a psychologist. His registration lapsed later in November because he did not apply to renew the registration, submit the mandatory declarations, or pay the applicable registration fee.

2. On 4 January 2017, Mr Henkelman appealed the decision to impose conditions under s 55 of the Civil and Administrative Tribunal Act 2013 (NSW). That appeal was dismissed in Henkelman v Psychology Council of Australia [2017] NSWCATOD 161. He now seeks review of the Tribunal's decision by summons filed in this Court in December 2017. That application was pursued, it appears, in circumstances where on 30 March 2017 the Council had granted Mr Henkelman non-practising registration, which was not subject to conditions.

3. On 9 April 2018 the chief executive of the Australian Health Practitioner Regulation Agency, established by s 23 of the National Law, issued a certificate under s 244 of that Act, attesting to the terms of Mr Henkelman’s registration. Such a certificate is prima facie evidence of the matters there stated.

4. These and other matters were addressed in documents contained in the joint Court Book filed in these proceedings on 18 May 2018, where at tab 2 the reasons for decision given by the Civil and Administrative Tribunal appear and at tab 3, an affidavit emailed by Mr Henkelman to the Council on 7 December 2017, together with annexures. At tab 4 of that Court Book, are the Council's submissions.

5. The matter was listed for hearing on 31 May, today. Beforehand Mr Henkelman attempted unsuccessfully, twice, to have the hearing adjourned, in circumstances which included he having moved to Sri Lanka and claiming financial hardship. Those applications were made in March and May 2018: Henkelman v Psychology Council of Australia (Supreme Court (NSW), Fagan J, 22 March 2018,unrep) and Henkelman v Psychology Council of Australia [2018] NSWSC 800.

6. Today, when the matter came on for hearing, there was no appearance for Mr Henkelman. He had appeared before Campbell J in the duty list last Friday by telephone. There has been no approach to the Court by Mr Henkelman for an opportunity to appear on this application in that way, nor has there been any other communication received from Mr Henkelman by the Court, or it appears, by the Council.

7. In those circumstances the Council's application is that the matter be dismissed for want of due dispatch under r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW), in circumstances where it is submitted that Mr Henkelman has had a fair opportunity to prosecute his case and where there is no utility in further adjournment of the hearing, in the circumstances which have unfolded. It is also submitted that dismissal of the proceedings accords with the overriding purpose specified in s 56 of the Civil Procedure Act 2005 (NSW), the just, quick and cheap resolution of the real issues in the proceedings.

8. It is apparent from the Tribunal's reasons that Mr Henkelman’s appeal was dismissed without hearing, despite it being accepted that he was genuine in his belief that he had been wronged and wished to vindicate his reputation, because it was concluded in the circumstances where he had let his registration lapse that no order could be made in his favour.

9. In its reasons the Tribunal observed that the Council had noted a pattern of complaints that raised concerns that Mr Henkelman either did not understand or was in wilful disregard of his professional responsibilities in relation to professional boundaries and that those complaints also raised concerns in regard to his ability to communicate professionally and effectively.

10. It also noted the Council's conclusion that Mr Henkelman’s conduct and performance appeared not to be within acceptable standards, including but not limited to what it described in relation to a particular person, as to problems in respect of professional boundaries and blurring of roles.

11. The Tribunal also noted that Mr Henkelman’s registration as a psychologist had lapsed for non-renewal, at which point he ceased to be a registered health practitioner; that between 1 December 2016 and 30 March 2017 he was not registered as a psychologist; but then on 30 March 2017, he had been granted the non-practising registration for which he had applied, that requiring him not to practise his profession.

12. The Tribunal also explained the steps pursued by Mr Henkelman to have the hearing of his appeal before it adjourned and the Council's application to have it dismissed and what he had advanced in support of his application. It also outlined the parties' competing submissions, those advanced for Mr Henkelman having been prepared by counsel.

13. Then in issue, was whether the conditions appealed against were still in existence, given the lapse of Mr Henkelman’s registration in November 2017, before the appeal against the conditions imposed upon him was filed.

14. It was concluded that the Tribunal had no power, in the circumstances, to permit Mr Henkelman the opportunity he sought to restore his honour and vindicate his reputation, the Tribunal's powers being limited to those contained in s 159(C)(1), to terminate, vary or confirm a period of suspension or revoke, vary or confirm the conditions, as it thinks proper.

15. In the circumstances, it was concluded that the Council's decision was not able to be rescinded by the Tribunal. Further, under this legislative scheme it was not trite or automatic that the same conditions would be imposed on Mr Henkelman, if he applied for further registration as a psychologist. In any event, whatever order was made, the fact of the conditions having been imposed upon him would form the backdrop of any future applications which he might make for registration.

16. From a reading of the Tribunal's reasons, it is apparent that there is certain difficulty with the case which Mr Henkelman sought to advance on this application, he having let his registration lapse and having applied, as he later did, for non-practising registration.

17. At the hearing today Mr Henkelman has not appeared to prosecute his case, in circumstances where Campbell J's reasons for refusing the adjournment application alluded not only to the circumstances in which Mr Henkelman came to make the application for a very lengthy adjournment, but also the difficulty confronting him, in the case which he then explained that he sought to advance.

18. In those circumstances there is no doubt that Mr Henkelman has had a fair opportunity to advance his case, but has not taken advantage today of the opportunity available to him to prosecute it, knowing that the adjournment application had been refused and that the matter would proceed to hearing today.

19. In all of those circumstances, bearing in mind the obligations imposed not only upon the Court by s 56 of the Civil Procedure Act, but also on the parties, I am well satisfied that the orders sought by the Council must be made.

20. The usual order as to costs under the Uniform Civil Procedure Rules 2005 is that costs follow the event. In this case, that is an order in favour of the Council. In the circumstances I have outlined, there is no proper basis for any departure from that order.

21. Accordingly, for these reasons I order that:

1. The application is dismissed; and

2. Mr Henkelman is to bear the Council’s costs as agreed or assessed.

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Decision last updated: 01 June 2018