Hocking v Medical Board of Australia
[2014] ACTSC 48
•21 March 2014
ACT SUPREME COURT
Case Title: | Richard Andrew Hocking v Medical Board of Australia & Anor |
Medium Neutral Citation: | [2014] ACTSC 48 (21 March 2014) |
Hearing Date(s): | 5, 7, 8, 12, 21 and 28 November 2013 |
DecisionDate: | 21 March 2014 |
Before: | Murrell CJ |
Decision: | See [238] |
Catchwords: | CIVIL – Administrative law – judicial review – decision of ACT Medical Board – suspension of registration - meaning of mandatory notification of complaint – actual or apprehended bias – procedural unfairness |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT) Health Act 1993 (ACT) Health Practitioner Regulation National Law 2012 (ACT) Supreme Court Act 1933 (ACT) Supreme Court Act 1970 (NSW) Civil Procedure Rules 2006 (ACT) Judicial Review of Administrative Action (Lawbook Co., 5th Ed, 2013) |
Cases Cited: | Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 ASIC v Stone Assets Pty Ltd (2012) 205 FCR 120 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Australia and New Zealand Banking Group Limited v Manny & Ors [2013] ACTSC 116 (12 June 2013) Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 Dickason v Edwards (1910) 10 CLR 243. Director General Department of Trade and Investment Regional Infrastructure and Services v Lewis (2012) 301 ALR 420 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Duncan v Ipp (2013) 304 ALR 359 Edner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Evans v Shiels (2004) 185 FLR 1 Hall v NSW Trotting Club Ltd [1977] 1 NSWLR 378 Inglis v Moore (1979) 24 ALR 411 IW v City of Perth (1997) 191 CLR 1, 50-51 Jarratt v Commissioner of Police (2005) 224 CLR 44 Jia vMinister for Immigration and Multicultural Affairs (1998) 84 FCR 87 Jones v Dunkel (1959) 101 CLR 298 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 NCSC v News Corp Ltd (1984) 156 CLR 296 Prescott v Legal Practitioners Disciplinary Tribunal [2009] SASC 309 R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 R v Federal Court of Australia; Ex parte WA National Football League (1979) 190 CLR 142 Russell v Duke of Norfolk [1949] 1 All ER 109 Schulman v Abbott Tout Lawyers (No 2) [2010] FCA 526 (17 May 2010) Shi v Migration Agents Registration Authority (2008) 235 CLR 286 Shop, Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 Taylor v The Medical Board of South Australia [2010] SASC 308 (9 November 2010) |
Category: | JUDGMENT |
Parties: | Richard Andrew Hocking (Plaintiff) Medical Board of Australia (First Defendant) Robert Griffin (Second Defendant) |
Representation: | Counsel: Ms K Nomchong SC (Plaintiff) Ms K Eastman SC (First Defendant) Mr C Erskine SC (Second Defendant) |
| Solicitors: Minter Ellison (Plaintiff) ACT Government Solicitor (First Defendant) ACT Government Solicitor (Second Defendant) | |
File Number(s) | SC 226/2013 |
JUDGMENT
Index
Overview.................................................................................................................................... 5
Relief sought............................................................................................................................... 6
Issues for determination............................................................................................................. 7
The 2011 Notifications................................................................................................................ 8
The McLaren Notification........................................................................................................ 10
The Second Solomon Notification and the imposition of conditions 7-12................................... 12
The removal of conditions 1-6................................................................................................... 13
The removal of conditions 7-12................................................................................................. 14
The First McKenzie Notification............................................................................................... 14
The Second McKenzie Notification and the Board Meeting of 16 April 2013............................ 15
The Griffin Notification and the Ashman Complaint................................................................ 15
Overview of the National Law.................................................................................................. 19
Does Dr Hocking have standing to obtain declarations and prohibition?.................................. 24
Discretionary considerations in favour of refusing relief by way of orders in the nature of prohibition and declarations.............................................................................................................................. 28
“Concurrent” jurisdiction with ACAT?................................................................................... 33
Was the Griffin Notification a valid mandatory notification?................................................... 36
Was there another lawful basis upon which the Griffin Notification was made?...................... 42
If the Griffin Notification was not a valid notification, did the board err in acting upon it?..... 43
Procedural Fairness – Dr Hocking’s Six Planks........................................................................ 45
General principles in relation to procedural fairness................................................................ 46
General principles in relation to actual and apprehended bias................................................. 48
Consideration of the first plank – bias of Dr McKenzie............................................................ 54
Consideration of the second and sixth planks – procedural deficiencies and failure to discharge statutory functions................................................................................................................................... 58
Consideration of the third plank – the imposition of excessive penalties................................... 65
Consideration of the fourth plank – the treatment of anonymous notifications......................... 65
Consideration of the fifth plank – differential treatment.......................................................... 65
Is there circumstantial evidence of actual or apprehended bias by the Board?......................... 66
Application for order in the nature of prohibition against the Board........................................ 67
Does any denial of procedural fairness constitute a jurisdictional error upon which orders in the nature of prohibition may be made?........................................................................................................ 67
Orders...................................................................................................................................... 68
Annexure 1 – Griffin Notification............................................................................................. 70
Annexure 2 - Legislation........................................................................................................... 71
Overview
The plaintiff (Dr Hocking) is an orthopaedic surgeon employed at the Canberra Hospital (Hospital). He seeks judicial review, including review of a decision of the ACT Medical Board (Board) to suspend his registration as a medical practitioner.
The Board is the first defendant. The Medical Board of Australia has delegated its functions in the Australian Capital Territory to the Board, including the function of considering disciplinary complaints against medical practitioners. Pending full investigation of a complaint against a medical practitioner, in a serious case the Board may take “immediate action” by imposing conditions or suspending the practitioner’s registration.
The second defendant is Dr Griffin, a medical practitioner who notified a complaint against Dr Hocking.
Since 2011, a number of complaints against Dr Hocking have been notified to the Australian Health Practitioner Regulation Agency (AHPRA), a body established under the Health Practitioner Regulation National Law 2012 (ACT) (National Law). AHPRA undertakes preliminary assessments and investigations on behalf of the Board. Mr Logan is the Director of Notifications (ACT) at AHPRA.
Some of the complaints against Dr Hocking were made by Professor Paul Smith, the Head of the Orthopaedic Unit at the Hospital.
Dr McKenzie is a medical practitioner who chaired the Board when it considered the notifications concerning Dr Hocking.
In these proceedings, reference has been made to the following seven notifications against Dr Hocking that were received by the Board.
1.In March 2011, Dr Solomon and others submitted a notification in relation to two child patients (the First Solomon Notification).
2.In April 2011, Professor Smith submitted a notification (the Smith Notification).
These notifications (the 2011 Notifications) lead to the imposition of conditions 1–6 on Dr Hocking’s registration from 21 June 2012 to 16 April 2013, when they were replaced by new conditions 1–3.
3.On 9 July 2012, Dr Solomon submitted a notification in relation to patient O (the Second Solomon Notification).
As a result, conditions 7–12 were imposed on Dr Hocking’s registration, from 3 September 2012 to 4 March 2013, when the conditions were removed.
4.On 13 March 2013, Dr McKenzie submitted an anonymous notification concerning six patients (the First McKenzie Notification).
5.On 19 March 2013, Professor Smith made a notification.
The Board is yet to consider that matter.
6.On 16 April 2013, Dr McKenzie submitted a further notification, which concerned sixteen patients, including Patient A (the Second McKenzie Notification).
On 18 April 2013, Dr Ashman received a complaint from Professor Smith dated 14 April 2013 concerning patient A (Ashman Complaint). That document was not submitted to the Board.
7.On 17 April 2013, Dr Griffin submitted a notification to the Board about Patient A (the Griffin Notification), which appears to have been in identical terms to that received by Dr Ashman.
On 26 April 2013, the Board suspended Dr Hocking’s registration pursuant to s 156(1) (a) of the National Law (the suspension decision). Dr Griffin appealed to the ACT Civil and Administrative Tribunal (the ACAT). Pursuant to s 68 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) and s 199 (1) of the National Law, the ACAT is empowered to review certain decisions of the Board and to substitute its own decisions.
Relief sought
In summary, in a second amended originating application filed on 30 October 2013 Dr Hocking makes the following applications.
1.To review the Board's suspension decision.
2.To review the Board's decision to act on the Griffin Notification and the Board's failure to decide that no further action should be taken on that notification.
3.To review the Board's denial of procedural fairness (constituted by breaches of the hearing rule and the bias rule) in relation to the Griffin Notification and prior notifications concerning Dr Hocking, particularly the First and Second McKenzie Notifications.
4.To grant prerogative relief.
In summary, the following relief is sought.
1.A declaration that the Board wrongfully acted on the Griffin Notification because the notification divulged information that was protected information under s 125 of the Health Act 1993 (ACT) (Health Act).
2.A declaration that the Griffin Notification was not a mandatory notification in accordance with s 141 of the National Law.
3.An order in the nature of prohibition that the Board take no further action in relation to the Griffin Notification.
4.An order in the nature of prohibition that the Board, if constituted to include any of the nine nominated individuals (including Dr McKenzie), take no action in relation to any notification concerning Dr Hocking that has, to date, been lodged with AHPRA and/or considered by the Board.
5.An order in the nature of prohibition that the Board, if constituted to include any of the nine nominated individuals (including Dr McKenzie), take no action in relation to any future notification concerning Dr Hocking.
At the commencement of the proceedings, Dr Hocking abandoned an application for an order in the nature of certiorari quashing the Board’s suspension decision. By doing so, Dr Hocking maintained the subject matter of the ACAT merits appeal.
Issues for determination
The way in which Dr Hocking argued his case changed during the hearing. Having regard to the way in which the case was ultimately argued, the following issues are to be determined.
1.Is the Court’s jurisdiction to review the Board’s decision to suspend Dr Hocking “concurrent” with that exercised by the ACAT (within the meaning of s 20(2) of the Supreme Court Act 1933 (ACT) (Supreme Court Act))? If the jurisdiction is “concurrent”, should the Court decline to exercise its discretion to hear the current matter?
2.Was the Griffin Notification a “mandatory notification” within the meaning of the National Law? If not, was there another lawful basis upon which it was made?
3.If the Griffin Notification was made unlawfully or “invalidly”, was the Board obliged to take no action? If so, do the actions of the Board reveal a jurisdictional error upon which an order in the nature of prohibition may be made?
4.Has there been actual or apprehended bias on the part of the Board?
5.Has the Board breached the hearing rule?
6.If there has been bias or a breach of the hearing rule, does it constitute a jurisdictional error upon which orders in the nature of prohibition may be made?
7.In its discretion, should the Court decline to grant the declarations and orders that are sought?
The 2011 Notifications
On 24 March 2011, Dr Solomon and six other doctors at Sydney Children’s Hospital notified AHPRA of the First Solomon Notification, which concerned Dr Hocking's treatment of an 18-month-old baby and an adolescent with Perthes disease. The notifiers noted that “the treatment of adolescent Perthes disease is difficult.” They expressed concern in relation to the clinical judgment, surgical skills and management practices of Dr Hocking.
On 12 April 2011, Associate Professor Smith notified AHPRA of the Smith Notification, which primarily concerned one patient, and referred to a second patient.
On 19 April 2011, the Board met to consider both notifications. The Board directed AHPRA to issue a notice to Dr Hocking, inviting him to show cause as to why the Board should not take “immediate action” under s 156 of the National Law to suspend his registration. On 20 April 2011, Dr Hocking’s solicitors asked for an adjournment of the proceedings so that Dr Hocking could properly put his case. The Board agreed to adjourn the proceedings to 2 May 2011.
On 21 April 2011, Dr Hocking volunteered to the Board that he would undertake to refrain from performing open hip or pelvic surgery pending the completion of the AHPRA investigation.
On 2 May 2011, the Board met to consider whether “immediate action” should be taken. Dr Hocking says that certain “points of consideration” that are noted in the minutes of the Board meeting were not put to him, including an alleged difficulty on his part in relating to professional colleagues and inadequate follow-up of patients. Initially, the Board was minded to impose a condition on registration that, pending the completion of the formal AHPRA investigation, Dr Hocking undertake no elective adult or paediatric open hip surgery and involve a senior colleague when managing trauma surgery involving major pelvic injury. However, on 5 May 2011 the Board agreed that an appropriate form of “immediate action” was the acceptance of an undertaking in those terms.
On 3 August 2011, AHPRA asked Dr Hocking to provide copies of the medical records of relevant patients mentioned in the First Solomon Notification and the Smith Notification, but there was no response. In September 2011, Dr Hocking asked the Board to agree to the revocation or amendment of the terms of his undertaking, but the Board declined to do so as it was not satisfied that the risk posed by Dr Hocking had diminished. In October 2011, the Board engaged Dr Fraser to conduct a peer review of Dr Hocking's treatment of certain patients. On 7 November 2011, Dr Fraser provided a report to the Board. As a result of additional medical reports becoming available, Dr Fraser provided a supplementary report on 15 December 2011. Dr Fraser concluded that there was an issue of public safety.
A copy of Dr Fraser’s report was provided to Dr Hocking’s legal representatives. Dr Marel prepared a report on behalf of Dr Hocking, in which he disagreed with some aspects of Dr Fraser’s analysis but concluded that “there have been too many complications” in relation to Dr Hocking’s treatment of patients. Dr Marel accepted that Dr Hocking may need supervision and retraining. Dr Marel’s report was provided to AHPRA on 22 March 2012.
On 18 April 2012, the Board met and considered the reports of Drs Fraser and Marel. The Board decided that it was necessary to impose conditions on Dr Hocking’s registration. A notice of proposed action was sent to Dr Hocking. Dr Hocking made written submissions in response.
On 21 June 2012, the Board decided to impose conditions 1-6. Dr Hocking was notified. The conditions limited the surgery that Dr Hocking could undertake and required that he be mentored and retrained.
Thereafter, there was correspondence between the Board and Dr Hocking in relation to the acceptable manner of compliance with the conditions. Dr Hocking requested that retraining in the areas of adult and paediatric surgery be undertaken by a Dr McNicol, a semi-retired surgeon from whom Dr Hocking had bought his practice. The Board declined the request, preferring a trainer who was actively engaged in the professional field, was regularly involved in training surgeons in the field, and who maintained a current practice in the field.
The McLaren Notification
In July 2011 Dr McLaren (a rehabilitation specialist) complained about the conduct of Associate Professor Smith towards Dr Hocking. Dr McLaren expressed the beliefs that Associate Professor Smith was compiling clinical data to be used against Dr Hocking in possible breach of patient confidentiality, that Professor Smith was acting for an ulterior motive, and that an adverse outcome for one patient was primarily due to the incompetence of a Dr Stubbs rather than any fault on the part of Dr Hocking.
In evidence, Dr Hocking said that he did not ask Dr McLaren to make the complaint. However, he did discuss with Dr McLaren the notifications that had been made against him. Except in the case of one patient, Dr McLaren’s knowledge of the subject matter of the notifications came from discussions with Dr Hocking.
When making the notification against Associate Professor Smith, Dr McLaren asked that his identity not be disclosed and that the notification not be forwarded to Associate Professor Smith. The Board did not forward the notification. Instead, the Board wrote to Associate Professor Smith. However, the letter raised only the matter of Dr Stubbs’ competence. Associate Professor Smith responded to that matter. The investigator's report noted the limited content of Associate Professor Smith's response. Neither Dr McLaren nor Dr Hocking was interviewed in relation to the subject matter of the notification.
On 30 November 2011, the Board determined to take no further action as it considered that the notification related to anti-competitive behaviour rather than to performance and professional standards. In July 2012, the Board advised Dr McLaren that the Stubbs investigation was complete and it proposed to take no further action.
In about November 2011, Dr McLaren met with Mr Logan of AHPRA to discuss Dr McLaren’s complaint. Dr McLaren gave evidence that, during the meeting, Mr Logan stated that “we” agreed that Professor Smith had treated Dr Hocking improperly. Mr Logan disputed that assertion. Given the lapse of time since the meeting and the subsequent conduct of the Board (which was inconsistent with a view that Dr Hocking had been treated improperly), I am not satisfied that Dr McLaren’s recollection of the meeting is accurate.
The Second Solomon Notification and the imposition of conditions 7-12
On 9 July 2012, Dr Solomon notified the Second Solomon Notification to both AHPRA and the Hospital’s Clinical Practices Committee (the CPC), an approved public sector scope of clinical practice committee constituted under s 56 of the Health Act. That Notification concerned Dr Hocking performing a hip arthroscopy on 15 February 2012. Dr Hocking had referred the relevant patient to Associate Professor Smith, who had referred him to Dr Solomon.
The CPC conducted an inquiry into the complaint and proposed that Dr Hocking accept certain restrictions on his practice. Dr Hocking agreed to the restrictions.
On 23 August 2012, the Board decided that it should take "immediate action" in relation to the Notification. The Board expressed concern about a “pattern of behaviour”. On 27 August 2012, Dr Hocking’s solicitors advised the Board that the CPC had decided to place conditions on Dr Hocking’s practice and submitted that, in light of the CPC conditions, the Board should take no action. On 28 August the Board gave Dr Hocking notice that he should show cause as to why he should not be subjected to “immediate action” in the form of a condition preventing him from performing unsupervised adult or paediatric surgery.
The Board met on 4 September 2012, and decided that, in addition to conditions 1 – 6, it should impose conditions 7 – 12 on Dr Hocking's registration as a form of “immediate action”. The Board was aware that the previous restrictions on Dr Hocking’s practice did not preclude the performance of the hip arthroscopy procedure that was undertaken on the patient the subject of the Second Solomon Notification. The Board’s minutes note that the Board was concerned about Dr Hocking’s apparent lack of insight, technical competence and decision-making abilities. As conditions 7-12 required that surgery by Dr Hocking be supervised and required that Dr Hocking undertake forty hours per week of training, the effect of the new conditions was to prevent him from practising.
On 11 September 2012, Dr Hocking sought a review by the ACAT of the Board's decision, complaining that he had been denied procedural fairness.
Dr Hocking applied to the Supreme Court for a stay of conditions 1-7. On 12 September 2012, the Court ordered a stay, subject to Dr Hocking undertaking that he would not perform certain surgery on children and would pursue certain retraining.
On 22 November 2011, the Board asked Associate Professor Cundy to provide a report in relation to Dr Hocking’s treatment of the patient the subject of the Second Solomon Notification. Associate Professor Cundy provided a report dated 7 December 2012, which was received by AHPRA on 25 January 2013.
The removal of conditions 1-6
On 6 February 2013, the Board received progress reports from the practitioners who had been supervising or mentoring Dr Hocking. They recommended the removal of conditions 1 – 6. On 28 February 2013, the Board met to conduct a review of those conditions. It was proposed that conditions 1 – 6 be replaced by three new conditions. On 1 March 2013, Dr Hocking was advised that the Board would meet on 16 April 2013, when he could make submissions about proposed new conditions 1- 3.
On 16 April 2013, the Board met to review conditions 1 – 6 and to determine whether they should be replaced with new conditions 1 – 3. Dr Hocking and his legal representatives attended the meeting. Dr Hocking's legal representatives requested that Dr McKenzie recuse himself on the basis that he had a conflict of interest because he was the notifier of the First McKenzie Notification. In the absence of Dr McKenzie, the other Board members decided that such action was not necessary as Dr McKenzie was merely the conduit of the First McKenzie Notification. The Board decided to replace conditions 1- 6 with new conditions 1- 3. Unfortunately, it was not until 8 May 2013 that this decision was conveyed to Dr Hocking. In the intervening period, on 24 April 2013, the Board decided to take “immediate action” in relation to the Griffin Notification.
The removal of conditions 7-12
In the ACAT proceedings concerning conditions 7-12, on 8 February 2013 Dr Hocking filed a statement of facts and contentions. On 11 February 2013, the ACAT set aside subpoenas issued at the request of Dr Hocking on individual Board members, and narrowed the scope of documents to be produced by AHPRA. On 19 February 2013, Dr Hocking served substantial further material. On 21 February 2013, the ACAT granted the Board's application for an adjournment of the review. The review hearing was fixed for 18 March 2013.
On 4 March 2013 the Board met to consider the AHPRA investigation in relation to the patient the subject of the Second Solomon Notification and decided to revoke conditions 7 – 12.
On 25 March 2013, Dr Hocking discontinued the ACAT appeal.
On 22 August 2013, the Board referred the matter to a performance and professional standards panel. The panel heard the matter on 18 October 2013 and reserved its decision.
The First McKenzie Notification
On 13 March 2013 Dr McKenzie (the Acting Chair of the Board) notified AHPRA of a complaint dated 24 February 2013 in relation to six patients that had been placed anonymously in his mailbox (the First McKenzie Notification). On 14 March, Dr Hocking was advised of the Notification. He was told that a preliminary assessment would be undertaken.
On 19 March 2013, Associate Professor Smith made a further notification in relation to Dr Hocking. The notification was not brought the attention of Dr Hocking. The matter is yet to be considered by the Board.
The Second McKenzie Notification and the Board Meeting of 16 April 2013
On 8 April 2013, Dr Hocking administered platelet rich plasma (PRP) to a nine-year-old patient (Patient A).
On 16 April 2013, Dr McKenzie lodged with AHPRA the Second McKenzie Notification, a document dated 14 April 2013, that purports to emanate from "a medical practitioner in the ACT". It concerned sixteen patients, including Patient A. Some of the patients named in the Second McKenzie Notification had been the subject of an earlier notification.
On 16 April 2013, the Board considered whether Dr McKenzie had a conflict of interest in relation to the Second McKenzie Notification, and decided that he did not. Dr McKenzie did not participate in the discussions.
It was not until 19 July 2013 that Dr Hocking was advised of the Second McKenzie Notification.
The Griffin Notification and the Ashman Complaint
Dr Griffin held three positions.
First, he was the Acting Medical Administrator of the Hospital’s CPC. In that capacity, he coordinated and managed the CPC but did not participate in its decisions.
Second, he was the Acting Director of the Medical and Dental Professional Standards Unit (the MDPSU), a body that was involved in the appointment and credentialing of senior medical staff in ACT public healthcare facilities. The MDPSU sat outside the organisational structure of the Hospital, reporting to the ACT Health Directorate. The MDPSU also provided administrative support to the CPC. Complaints came to the MDPSU from Executive and Clinical Directors of operational areas within the Hospital. Where a complaint was referred to the Director, there was a preliminary assessment to determine the manner in which the complaint should be dealt with. The Director had a “gatekeeper” role in deciding the place to which a complaint should be referred; whether to a CPC, the Board or both.
In his roles as the Acting Director of the MDPSU and Acting Medical Administrator of the CPC, Dr Griffin was responsible for evaluating complaints and, if warranted, referring them to a CPC and constituting the CPC comprising appropriate members.
The third position held by Dr Griffin was Locum Executive Director of Medical Services at the Hospital, a role that entailed professional oversight of medical services provided by the Hospital.
On 18 April 2013, Dr Griffin received a letter dated 17 April about Dr Hocking’s treatment of Patient A, the nine year old child who had received PRP for Perthes disease (the subject of the Griffin Notification). The text of that letter is Annexure 1 to these reasons.
On 18 April, Dr Ashman, the Clinical Director of Orthopaedics at the Hospital (who was not a member of the CPC but was a member of the Hospital’s clinical review committee), received a complaint concerning Patient A in apparently identical terms to the Griffin Notification, except that it was addressed “Dear Bryan”. It was authored by Associate Professor Smith. Dr Ashman met with Dr Griffin and Ms Reid, the Executive Director of Surgery, Oral Health and Medical Imaging at the Hospital. Dr Ashman told Dr Griffin and Ms Reid about the letter that he had received. He said that the complaint concerned Dr Hocking. In evidence, Dr Ashman recalled that, at the meeting, he showed the letter to Dr Griffin and Ms Reid and observed Ms Reid to read the letter. Ms Reid did not recall seeing the letter and she was unaware of the identity of the complainant. I find that, if Ms Reid did see the letter, she saw it only briefly and did not absorb the identity of the author. Dr Griffin said that he perused the letter and ascertained that it appeared to be substantially the same as the document that he had received. Dr Griffin did not disclose that he had received a similar letter. At the meeting, it was agreed that Dr Griffin would discuss the Ashman Complaint with Mr Ian Thompson, the Director General, ACT Health Services.
It was not until recently that Dr Hocking became aware of the Ashman Complaint.
Dr Griffin met with Mr Thompson. According to Dr Griffin, it was agreed that he should notify the Board. Mr Thompson recalled that there was a discussion about the matter being referred to a CPC, but he could not recall a discussion about referral to the Board.
After meeting with Mr Thompson, Dr Griffin made enquiries about PRP and ascertained that PRP transfusions for Perthes disease were not provided by the Hospital’s blood transfusion service and were considered to be an experimental procedure. He then met with Professor Chong, the Chair of the CPC, and advised him of the complaint. Dr Griffin said that the Board would be notified of the complaint.
Following the meeting with Dr Chong, on 18 April Dr Griffin contacted a Dr Bradbury of the Board by telephone and told her about the complaint. She said that she would accept the notification of behalf of the Board. Under s 146 of the National Law, a notification may be made verbally, including by telephone.
Dr Griffin blacked out the names of the complainant and Dr Hocking for the stated purpose of protecting the identity of the complainant and the privacy of the patient. In evidence, Dr Griffin said that, if he received a complaint that was to go to the CPC, it was his practise to anonymise the complaint to protect the identity of complainants who were employed within the Hospital and to protect the confidentiality of patients.
On 18 April 2013, under the signature block “A/Executive Director Medical Services The Canberra Hospital and Health Services”, Dr Griffin forwarded the anonymised complaint to Mr Logan at AHPRA.
On 19 April 2013, the Board met as a matter of urgency to consider the anonymised Griffin Notification. According to Mr Logan, the Board considered the Griffin notification to be a mandatory notification within the meaning of s 141 of the National Law. Prior to the meeting, at least one Board member had researched the use of PRP. At the meeting, the Board decided that it should take the "immediate action" of suspending Dr Hocking’s registration.
On 22 April, Dr Hocking was advised that he should “show cause” at a meeting of the Board on 24 April 2013 as to why his registration should not be suspended.
Dr Hocking and his legal representatives attended the meeting. During the meeting, Dr Hocking’s legal representatives adverted to the fact that the proceedings had been brought on at short notice, but made no other complaint. Dr Hocking presented material to the Board. Dr McKenzie chaired the meeting. He did not disclose to the Board or Dr Hocking that he had received the Second McKenzie Notification. The Board decided to suspend the registration of Dr Hocking with effect from 26 April. The minutes state that, in the context that there were conditions attaching to Dr Hocking’s registration and “recent serious reports” about his conduct, it was considered necessary to suspend his registration because the procedure about which complaint was made had no demonstrated therapeutic benefit and was not an approved procedure.
A decision to take the “immediate action” of suspending a practitioner’s registration continues to have effect until the decision is set aside on appeal or the suspension is revoked by the Board.[1]: s 159 National Law.
On 3 May 2013, Dr Hocking appealed to the ACAT to review the Board's suspension decision. Inter alia, Dr Hocking complained of denial of procedural fairness, conflict of interest and bias on the part of the Board.
On 6 May 2013, the ACAT stayed the suspension of Dr Hocking’s registration on the condition that Dr Hocking was not to perform elective paediatric surgery. On 19 July, the Supreme Court continued the conditional stay.
On 8 May 2013, the Board imposed one new condition on the registration of Dr Hocking; that he would undertake no unsupervised elective open hip or pelvic surgery apart from routine primary adult hip replacement. That condition continues.
Prior to the ACAT hearing the matter on the merits, on 5 June 2013 Dr Hocking applied to the ACAT for an order that the ACAT had no jurisdiction to determine whether the notification to the Board was invalid under the Health Act. The ACAT determined that it had no jurisdiction to decide the lawfulness of the Griffin Notification or to determine whether the Board had erred in considering an invalid notification.
Dr Hocking then commenced these proceedings by filing an application seeking declarations and orders in the nature of certiorari and prohibition.
On 2 August 2013, Dr Hocking's solicitors wrote to AHPRA complaining that the Board as currently constituted should not consider the Second McKenzie Notification because of actual or apprehended bias associated with the fact that Dr McKenzie had a conflict of interest.
In September 2013, the ACAT conducted a merits review of the suspension decision and reserved its decision. In these proceedings, Dr Hocking conceded that the proceedings before the ACAT fully explored the merits of his use of PRP.
Overview of the National Law
The text of the relevant provisions of the National Law is set out in Annexure 2 to these reasons.
The National Law has been adopted (with variations) in a number of Australian jurisdictions, including the ACT.
Inter alia, the National Law aims to establish a national registration and accreditation scheme for the regulation of health practitioners.[2] One of the objectives of the scheme is to protect the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered.[3] Another objective is to facilitate access to services provided by health practitioners in accordance with the public interest.[4] The guiding principles of the national registration and accreditation scheme include the principle that “the scheme is to operate in a transparent, accountable, efficient, effective and fair way” and the objective that restrictions on the practice of the health profession are to be imposed “only if it is necessary to ensure that health services are provided safely and are of an appropriate quality”.[5] Schedule 7 Part 2 cl 7 of the National Law provides that, when interpreting a provision of the National Law, the interpretation that will best achieve the purpose or object of the National Law is to be preferred.
The National Law binds statutory corporations and other entities representing the Crown in the relevant jurisdiction.[6] Section 4 provides that an entity that has a function under the National Law is to exercise the function having regard to the objectives and guiding principles.
AHPRA is established under Part 4 of the National Law. Section 23(2)(a) provides that it is a body corporate. Its functions include providing administrative assistance and support to the National Boards and the Boards’ committees in exercising their functions, and establishing an efficient procedure for receiving and dealing with notifications.[7]
Under Part 5, National Boards are established for various health professions. The Medical Board of Australia is established as the National Board for the medical profession under s 31(1). A National Board is a body corporate.[8] A National Board has no power to employ staff.[9] Schedule 4 applies to a National Board. Schedule 4 cl 7 provides that a member of a National Board is to act impartially. Accordingly, a member is to put the public interest before the interests of particular health practitioners.
The functions of a National Board include the establishment of panels to conduct hearings about health, performance and professional standards matters, and the monitoring of conditions, undertakings and suspensions imposed on the registration of practitioners.[10] The functions of a National Board do not include receiving notifications.[11]
A National Board may establish a committee for a participating jurisdiction (including a Territory Board) and delegate any of its functions (other than the power of delegation) to such a committee or to AHPRA.[12]. AHPRA may sub-delegate any function to a staff member under s 37(2).
Part 8 of the National Law (ss 138 – 207) concerns the health, performance and conduct of practitioners. Division 2 (ss 140 – 143) relates to mandatory notification by registered health practitioners and employers. If “in the course of practising (his or her) profession (a practitioner) forms a reasonable belief” that another practitioner has behaved in a way that constitutes “notifiable conduct”, then the practitioner must, as soon as practicable, notify AHPRA.[13] “Notifiable conduct” is defined by reference to four matters: intoxication, sexual misconduct, impairment causing risk of substantial harm, and significant departure from accepted professional standards placing the public at risk of harm.[14] Division 3 (ss 144 – 145) relates to voluntary notifications to AHPRA. Any “entity” (which includes an individual) may make a voluntary notification.[15] A voluntary notification may be made upon grounds that are much broader than the “notifiable conduct” grounds. They include, for example, the ground that the practitioner’s professional conduct “may be of a lesser standard that which might reasonably be expected ...”.[16]
Section 146 provides that a notification may be made to AHPRA either verbally or in writing, and it must include particulars. Under s 148, AHPRA must, "as soon as practicable after receiving a notification", refer the notification to the Board.
Within 60 days of receiving notification, a Board must conduct a preliminary assessment of the notification. Under s 149 the assessment is a preliminary filtering process that involves, inter alia, deciding whether the notification relates to a matter that is a ground for notification.
Section 150 (4A) sets out the action that may be taken by a Board in relation to a notification, the most serious action being "immediate action" and the least serious action being a decision to take no further action. Section 151 sets out the circumstances in which a Board may decide to take no further action, including, for example, the circumstance that the notification is considered to be frivolous or vexatious. Pursuant to s 151(2), a decision by the Board to take no further action does not prevent the Board taking the notification into consideration at a later time “as part of a pattern of conduct or practice by the health practitioner”.
Under s 156, a Board may take “immediate action” if the Board “reasonably believes” that the practitioner’s conduct “poses a serious risk to persons” and “it is necessary to take immediate action to protect public health or safety”. Pursuant to s 155 "immediate action" is defined to include suspension of registration or imposition of a condition of registration (the most serious forms of immediate action), the acceptance of an undertaking and the acceptance of the surrender of the practitioner’s registration. Under s 157, before taking the most serious forms of immediate action (suspension or the imposition of a condition) the Board must engage in a “show cause process”. An “immediate action” decision continues to have an effect until the decision is set aside on appeal or (in the case of suspension or the imposition of conditions) the suspension is revoked or the conditions are removed by the Board.[17]
Part 8 Division 8 (ss 160 – 162) deals with investigations. Having received a notification about a practitioner, a Board may investigate the practitioner “if it decides it is necessary or appropriate to do so”.[18] A Board initiates an investigation by directing an appropriate investigator to conduct the investigation.[19] A Board may appoint as an investigator a member of AHPRA or a contractor engaged by AHPRA.[20] If a Board decides to investigate a practitioner, it must give the practitioner written notice as soon as practicable.[21] It must notify the practitioner of the progress of the investigation at three monthly intervals.[22] The investigation is to be conducted in a timely way.[23] An investigator is required to provide the relevant Board with a written report “as soon as practicable after an investigation”.[24]
Part 8 Division 10 deals with the actions that make taken by a Board if the Board reasonably believes, because of a notification or for any other reason, that a registered health practitioner has engaged in unsatisfactory professional conduct, is impaired, has been charged or convicted of serious offence or may have contravened a registration condition. Division 11 concerns the establishment of health panels (to deal with questions of impairment) and the establishment of performance and professional standards panels (to deal with cases of unsatisfactory conduct). Division 12 concerns the referral of serious disciplinary matters by a Board to the responsible tribunal. A practitioner who is the subject of a hearing before a panel may require that the matter be referred to the responsible tribunal.
Does Dr Hocking have standing to obtain declarations and prohibition?
Jurisdiction
Superior courts such as this Court have inherent power to grant declaratory relief.[25]
The Court has jurisdiction to grant prohibition.[26] Section 20(1)(a) of the Supreme Court Act provides that the Court has “all original and appellate jurisdiction that is necessary to administer justice in the Territory”. Section 34B of the SCA provides that the Supreme Court has power to grant any relief by way of prerogative order, including relief by way of an order in the nature of prohibition or certiorari. Rule 3554 of the Civil Procedure Rules 2006 (ACT) (CPR) provides that:
(1)If, before the commencement of these rules, the court had jurisdiction to grant any relief by way of a writ of mandamus, prohibition or certiorari, or on an information in the nature of quo warranto , the court continues to have jurisdiction to grant the relief.
(2)However, the court may grant the relief only by making an order under these rules in the nature of, and to the same effect as, the relief that would have been available before the commencement of these rules.
Order of prohibition
Rule 3556(3) of the CPR provides a broad statutory test for standing:
A person may apply for prerogative relief if the person’s interests are, or would be, adversely affected in or by the matter to which the application relates.
In relation to the Board’s decision regarding the Griffin Notification, Dr Hocking has standing to seek an order in the nature of prohibition because his livelihood has been adversely affected by the “immediate action” of suspension.
In these proceedings, the Board noted inconsistencies between the relief claimed in Dr Hocking’s originating application and what he sought at the hearing. However, the Court is not bound to make or fashion its orders in strict accordance with what is proposed in an originating application.[27] The Court may grant the relief that it considers to be the most appropriate relief, even if it is not included in the originating application.[28]
The Court’s jurisdiction to grant prerogative relief is not boundless. In conferring upon the Court “all original and appellate jurisdiction that it is necessary to administer justice in the Territory”, s 20 (1) (a) of the SCA did not intend to create an “at large” jurisdiction to rectify any prospective “injustice” that may occur within the ACT. It intended to confer a jurisdiction similar to that conferred on the Supreme Court of New South Wales by s 23 of the Supreme Court Act 1970 (NSW). The power to make an order must be referrable to an identified legal or equitable right: Australian Broadcasting Corporation v Lenah Game Meats Pty Limited.[29] See also Evans v Shiels,[30] Sleiman v Murray,[31] Faull v Commissioner for Housing ACTand Residential Tenancies Tribunal.[32] The Court’s supervisory jurisdiction does not extend beyond “the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power.”[33]
Declarations in relation to the Griffin Notification
In summary, the plaintiff seeks two declarations in relation to the Griffin Notification. The first is that the Board should not have acted upon the notification as it divulged protected information in contravention of s 125(1) (a). The second is that the Griffin Notification was not a mandatory notification within the National Law.
The primary purpose of a declaration is to determine rights between parties which are not merely of academic interest or hypothetical, or whose resolution would be of no practical utility.[34] Declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions.[35] A declaration will not be made when it is merely hypothetical and does not affect substantive rights.[36] In Ainsworth v Criminal Justice Commission (“Ainsworth”), the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ summarised the criteria guiding a grant of declaration as follows:
It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise." However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties".[37] (emphasis added) (citations omitted).
Dr Hocking relies upon Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd.[38] In that case, the respondent businesses provided services to members of an Aboriginal community. The appellants were statutory bodies that proposed to conduct competing businesses in a limited market. The respondents contended that the proposed conduct of the competing businesses was unlawful because it was beyond the statutory powers of the appellants. The High Court determined that the respondents had a sufficient “special interest” to seek equitable relief by way of injunction to prevent apprehended economic loss. Referring to the High Court decision in Shop, Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) Gaudron, Gummow and Kirby JJ affirmed that the nature and subject matter of litigation will dictate what amounts to a “special interest”.[39]
The defendants argue that Dr Hocking lacks standing to seek a declaration in relation to the Griffin Notification. The defendants argue that, as the case was originally argued (when Dr Hocking sought certiorari in relation to the allegedly unlawful Griffin Notification), Dr Hocking may have had a “special interest in the subject matter of the proceedings” according him the standing to seek a declaration as a step in establishing an entitlement to prerogative relief. However, as Dr Hocking has abandoned the claim for certiorari, and merely maintains that a declaration should be made in the “public interest”, he lacks the “special interest” necessary to give him standing to obtain a declaration in relation to unlawful conduct.
Dr Hocking says that there remains a “public interest” in making the declaration concerning the Griffin Notification. For example, in relation to future notifications, it would be helpful for members of CPCs to know their statutory responsibilities to keep information confidential and for members of the Board to know that they needed to make enquiries about the provenance of notifications.
The “public interest” argument does not confer standing on Dr Hocking as it does not demonstrate that Dr Hocking has a “special interest” in the matter above that of an ordinary member of the public.
Dr Hocking also maintains that a declaration should be granted to support the grant of an order in the nature of prohibition against the Board’s further use of the Griffin Notification.
Dr Hocking does have an interest in whether or not the Board is prohibited from relying on the Griffin Notification in relation to future decisions. It is unnecessary to decide whether this interest is sufficient to grant Dr Hocking standing to seek a declaration, as the Court in its discretion would decline to grant the declarations for the reasons outlined below.
Discretionary considerations in favour of refusing relief by way of orders in the nature of prohibition and declarations
Prohibition - discretion
ACAT Proceedings
Regardless of the merits of the substantive arguments, in its discretion the Court would decline to make an order in the nature of prohibition that the Board take no further action in relation to the Griffin Notification.
The Board’s decision to suspend Dr Hocking is the subject of the ACAT proceedings. The existence of the merits review proceedings in the ACAT and the fact that those proceedings have been heard and reserved are important considerations in relation to the Court’s general discretion to grant or refuse the relief sought.
In the exercise of discretion, a court may decline to grant relief if a more convenient and satisfactory remedy exists or no useful result could ensue: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd.[40] It is usually inappropriate to allow the maintenance of two parallel streams of litigation that relate to the same dispute.[41]
Justice Gibbs (as he then was) in the majority of the High Court in R v Federal Court of Australia; Ex parte WA National Football League discussed the relevance of timing in an application for prohibition:
[P]rohibition is discretionary (at least where lack of jurisdiction is not patent) and in some cases it would be convenient to defer the hearing of an application for prohibition until further proceedings had been taken in the tribunal against which prohibition was sought. This might be because a decision in favour of one party would render academic the question whether prohibition should be granted, or because it would assist [the High Court] in discharging its ultimate responsibility if evidence were taken in the tribunal below. Those examples are not intended to be exclusive.[42]
Dr Hocking abandoned the application to quash the suspension decision, ensuring that the decision remains alive and subject to review by the ACAT. The merits of using PRP in the context of treating Perthes disease have been fully explored in the ACAT proceedings. For the purposes of the appeal, under s 202 National Law the ACAT acts as if it was the Board, hears the evidence afresh, and exercises the Board’s powers in reaching a new decision on the merits.[43] The decision of the ACAT will supersede the suspension decision of the Board that is under review. It is the ACAT, not the Board that will decide whether Dr Hocking is to be suspended from practising medicine. The ACAT decision is internally reviewable under ss 79 and 82 and can be referred to or appealed to this Court under ss 83, 84 and 86. Had he succeeded in his pursuit of certiorari, the legal effect of the suspension decision would have been quashed or nullified.[44]
In some cases, complaints by Dr Hocking to the Board that it was biased or had failed to accord a fair hearing were met with refusal, but Dr Hocking did not exercise his right to seek a review of the decision. Other decisions of the Board were challenged in the ACAT or Supreme Court, but the proceedings were not pursued to finality. Dr Hocking is seeking to re-agitate issues that have been the subject of earlier proceedings that Dr Hocking has chosen to abandon.
Future Conduct
Another issue that has arisen in the case is whether or not it is within the Court’s supervisory jurisdiction to grant an order of prohibition in circumstances such as the present, where prohibition would prevent the Board (as presently constituted) from taking action against Dr Hocking in relation to matters that are not currently before the Board. The prohibition that is sought by Dr Hocking is “anticipatory” or “pre-emptive” in nature as the proposed order would not only prevent further action being taken in relation to a past decision, but would extend to preventing the Board from acting in relation to future matters.[45]
The Court declines to consider the breadth of the Court’s jurisdiction to grant “anticipatory” or “pre-emptive” prohibition as the remedy of prohibition is refused for the reasons below.
The fact that the relief sought by Dr Hocking is pre-emptive in nature goes to the Court’s discretion to grant the relief. Assuming, but not deciding that the Court has jurisdiction to grant such relief, the authorities suggest that, when an order in the nature of prohibition is sought in relation to future conduct, there must be more than a risk of procedural unfairness, there must be a strong probability that procedural unfairness will result.[46] The case of Director-General, Department of Trade & Investment, Regional Infrastructure and Services v Lewis concerned injunctions, but Sackville J drew on the law in relation to prohibition.[47] Dr Hocking argued that there is a very real probability that the Board would exercise its functions in a way that amounted to jurisdictional error, but it is not necessary to consider this submission for the reasons set out at paragraphs [234]-[237] below.
Declarations - discretion
In relation to the declarations sought by Dr Hocking, to the extent that declarations are sought in support of orders for prohibition, the reasons for refusing the orders of prohibition are reasons that the Court would, in its discretion, refuse to grant the declarations.
There is a further basis upon which the Court would refuse to issue the declaration sought by Dr Hocking that the Board should not have acted upon the Griffin Notification as it divulged protected information in contravention of s 125(1)(a) of the Health Act.
Section 125 of the Health Act creates an offence of divulging protected information.
There is strong authority that courts should be reluctant to issue injunctions or declarations in civil suits that have the effect of enforcing a criminal statute. The seminal decision is Gouriet v Union of Post Office Workers, in which the House of Lords declined to issue a declaration that a proposed strike would be in breach of the criminal law, making several statements about the exceptional nature of granting such relief.[48]
In Inglis v Moore, St John J stated in relation to such civil suits that:
What, in effect, would happen if such an application were allowed to proceed would be that a defendant in civil proceedings would be found to have committed a crime without having the various advantages which are afforded him in a criminal trial. To mention some of those advantages there is the onus of proof which would not be so stringent in civil proceedings, the compellability of witnesses would be different, no committal proceedings would be available to test the strength of the case against him and certain procedural advantages such as the availability of a statement from the dock would be denied him. [49]
In Crane v Gething, French J (as His Honour then was) considered the principles involved in making declarations of criminal conduct in civil proceedings. His Honour said that:
attempts to establish by declaration, other than upon the application of the Attorney General or statutory regulators, that past conduct amounts to a criminal offence have been given short shrift.[50]
The principal qualification to the law as articulated in Gouriet concerns statutory regulators who, as an alternative to a criminal prosecution or an action for a civil remedy, may seek a declaration, either expressly or by implication employing the standing traditionally granted to the Attorney General: e.g. Corporate Affairs Commission v Transphere Pty Ltd;[51] ASIC v Stone Assets Pty Ltd.[52]
Dr Hocking argues that cases such as Gouriet are of no relevance as the declaration being sought will have no effect on Dr Griffin because of the operation of s 237 of the National Law. Section 237 operates to protect notifiers who act in good faith, providing that they are “not liable, civilly, criminally, or under an administrative process, for giving the information”.
Even if s 237 of the National Law does provide a defence to otherwise unlawful conduct, the granting of the declaration sought by Dr Hocking would require the Court to consider whether Dr Griffin contravened s 125(1)(a) of the Health Act, i.e. whether Dr Griffin engaged in unlawful conduct by making the Griffin Notification. The principles underlying the reluctance of courts to grant declarations in relation to unlawful conduct remain applicable to the case. Dr Hocking is not a statutory regulator. Consequently, it would be inappropriate to grant the declaration sought by Dr Hocking.
A further reason for declining to grant the declaration is that Dr Hocking has expressly disavowed a desire to obtain relief that is based primarily on unlawfulness. He seeks relief primarily in relation to the Board’s conduct rather than the alleged unlawful conduct of Dr Griffin. It is the conduct of the Board that is affecting his livelihood.
“Concurrent” jurisdiction with the ACAT?
Dr Hocking seeks to invoke the Court’s jurisdiction under s 20 of the Supreme Court Act. Section 20(2) provides that the Court “is not bound to exercise its powers if it has concurrent jurisdiction with another court or tribunal.”
The respondents contend that, in relation to the suspension decision, s 20 (2) applies as the Court’s jurisdiction is concurrent with that of the ACAT.
The judicial nature of the supervisory jurisdiction of the Court that is invoked differs from the administrative nature of the ACAT’s jurisdiction to review on its merits the Board’s decision to take the “immediate action” of suspending Dr Hocking’s registration. Kozanoglu v Pharmacy Board of Australia is authority for the proposition that in exercising its jurisdiction, the ACAT is to take into account the material that was before Board when it made its decision and any additional evidence that bears directly upon the position as it was when the original decision was made.[53]
The nature of a court’s judicial review jurisdiction was discussed by Brennan J (as he then was) in the majority of the High Court in Attorney-General (NSW) v Quin:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.[54]
The nature a tribunal’s merits review jurisdiction was discussed by Kirby J in the majority in Shi v Migration Agents Registration Authority (“Shi”).[55] His Honour cited the proposal of the Commonwealth Administrative Review Committee (the Kerr Committee) to create the Commonwealth Administrative Appeals Tribunal:
The jurisdiction [of a tribunal] should be to hear and determine an application by a person who is aggrieved or adversely affected by a decision on the ground that the decision was erroneous on the facts and merits of the case.[56] (emphasis added).
Justice Kirby illuminated the fundamental difference between traditional judicial review conducted by a court and merits review conducted by a tribunal:
[A] tribunal, with the power to make decisions “on the merits”, represented a bold departure from the pre-existing law, with its focus on constitutional and statutory “prerogative” remedies of judicial review. In so far as those remedies were invoked it was, and still is, commonly insisted that the court performing the review is not concerned, as such, with the factual merits of the matter, but only with legal merits, and then often only with any errors of a jurisdictional kind shown to exist at the time of the initial decision.[57]
Bowen CJ and Deane J (as he then was) in the majority of the Full Federal Court in Drake v Minister for Immigration and Ethnic Affairs said:
The function of the [Commonwealth Administrative Appeals Tribunal] is... an administrative one. It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. Except in a case where only one decision can lawfully be made, it is not ordinarily part of the function of a court either to determine what decision should be made in the exercise of an administrative discretion in a given case or, where a decision has been lawfully made in pursuance of a permissible policy, to adjudicate upon the merits of the decision or the propriety of the policy. That is primarily an administrative rather than a judicial function. It is the function which has been entrusted to the Tribunal.[58]
There is a fundamental difference between the supervisory jurisdiction of the Court that has been invoked to entertain Dr Hocking’s application for judicial review, and the merits review jurisdiction of the ACAT that has been invoked to review the Board’s suspension decision; the former is judicial and the latter administrative.
In Dibeek Holdings Pty Ltd v Notari (“Dibeek”)[59] a plaintiff landlord claimed that non-payment of rent and other breaches of covenant entitled it to forfeit the defendants’ subleases, and the plaintiff sought orders for possession in the Supreme Court of the ACT. The defendant subtenants filed notices of dispute with the Tenancy Tribunal. Higgins J (as he then was) determined that, under s 54(2) of the Tenancy Tribunal Act 1994 (ACT), the Tenancy Tribunal had wide powers, including the power to grant relief by an enforceable order for possession and/or ejectment.[60] His Honour held that this Court had concurrent jurisdiction with the Tenancy Tribunal within the meaning of s 20(2) of the SCA and stayed the proceedings in the Court. His Honour stated:
If the legislature establishes a specialist tribunal to deal with matters within that specialised area, then, prima facie, it would be expected that this Court would not, ordinarily, seek to assert its concurrent jurisdiction in relation to a matter then pending before such a tribunal.[61]
His Honour determined that it was appropriate that the proceedings continue in the Tribunal and the proceedings in the Court be stayed until further order.
Dibeek is distinguishable because in Dibeek the Tenancy Tribunal had the jurisdiction to hear the dispute and the power to make the same orders the Supreme Court could have made. In these proceedings, the Court’s jurisdiction to undertake judicial review and the ACAT’s jurisdiction to review on its merits the Board’s decision are fundamentally different. Both the Supreme Court and the ACAT have jurisdiction to hear argument about issues arising from the same set of facts. However the ACAT does not have supervisory jurisdiction to grant declaratory relief or orders in the nature of the prerogative writs. Conversely, this Court does not have the jurisdiction to conduct a merits review of the Board’s suspension decision. Further, in this case the ACAT merits review proceedings relate only to the “immediate action” of suspension. The proceedings do not extend to the continuing investigation and the final decision to be made by the Board.
The jurisdiction of the Court that Dr Hocking seeks to invoke to review the suspension decision is not concurrent with the jurisdiction exercised by the ACAT.
Was the Griffin Notification a valid mandatory notification?
Dr Hocking challenges the validity of the Griffin Notification. He contends that the notification was not a valid notification because it was not a mandatory notification under s 141 of the National Law.
First, Dr Hocking says that Dr Griffin received the complaint solely in his capacity as administrator of the CPC and that, by making the notification to AHPRA and the Board in his capacity as administrator of the CPC, Dr Griffin impermissibly disclosed “protected information” that s125 of the Health Act required that he keep secret. Dr Hocking argues that, because the Griffin Notification was made unlawfully, it was not a valid notification. There is a related submission that the Griffin Notification was not a mandatory notification because Dr Griffin did not form the requisite “reasonable belief” that Dr Hocking was guilty of notifiable conduct “in the course of (Dr Griffin practising his) profession” in accordance with s 141(1) of the National Law; Dr Griffin formed the belief when he was acting in an administrative capacity in relation to the CPC.
Dr Hocking’s second and alternative submission is that, because the Griffin Notification was an anonymous notification, it was not a mandatory notification within the meaning of the National Law. He contends that the concept of an anonymous mandatory notification is inconsistent with the provisions and intent of the National Law. By requiring that a notifier be an identified medical practitioner who holds a “reasonable belief”, the National Law provides an important protection to practitioners against vexatious or mischievous complaints.
Pursuant to s 140, “notifiable conduct” includes “(d) (placing) the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards”. There is no dispute that the letter of complaint alleged that Dr Hocking had practised the profession in a way that departed from professional standards, placing the public at risk. Nor is it disputed that, after he received the letter of complaint, Dr Griffin formed a reasonable belief that Dr Hocking was guilty of notifiable conduct. Rather, Dr Hocking contends that, because of the circumstances in which he received the letter, Dr Griffin should not have notified it to the Board.
Dr Hocking’s first submission requires him to establish either that Dr Griffin received the complaint in an administrative capacity only (and s 141(1) therefore did not operate because Dr Griffin did not receive the complaint in the course of practising medicine), or that the requirement of mandatory notification was excluded by s 141(4) of the National Law and s 125 of the Health Act, which precluded notification.
Section 141 of the National Law requires a registered health practitioner who, “in the course of practising the first health practitioner’s profession”, forms “a reasonable belief” that another registered health practitioner is guilty of “notifiable conduct” to make a “mandatory notification” to AHPRA. Under s 141(4), a registered health practitioner “does not form the reasonable belief in the course of practising the profession” if the practitioner forms the reasonable belief “in the course of exercising functions as a member of a quality assurance committee” and the practitioner is unable to disclose the information because an Act “prohibits the disclosure of the information”.
Part 5 of the Health Act provides for the establishment of scope of clinical practice committees (CPCs). The functions of a CPC include defining and reviewing the scope of clinical practice of a doctor credentialed for a health facility and withdrawing or amending the scope of clinical practice of a doctor: s 59(1)(b) and (d). Section 122 defines an “information holder” to include “a member” of a CPC, “someone else exercising a function ... under Part 5” and “someone else engaged in the administration of ... Part 5”. Section 123(1) defines “protected information” about a person as “information about the person that is disclosed to, or obtained by, the information holder because of the exercise of a function under this Act by the information holder or someone else”. Section 125(1)(b) provides that an information holder commits an offence if they recklessly divulge protected information. A maximum penalty of 50 penalty units, imprisonment for 6 months or both applies.
The first limb to Dr Hocking’s first contention is that Dr Griffin received the complaint solely in his role as Acting Medical Administrator of the CPC. Dr Hocking submits that Dr Griffin treated the complaint as one made to him in that role. Inter alia, at the meeting with Dr Ashman and Ms Reid, Dr Griffin did not reveal that he had received the notification (consistent with Dr Griffin recognising a duty of non-disclosure), he anonymised the document in accordance with the CPC protocol, and he notified the complaint to Dr Chong, the chair of the CPC.
The contention that Dr Griffin received the complaint only in his capacity as administrator of the CPC is unsustainable. Dr Griffin received the complaint in several capacities, including his capacity as Locum Executive Director of Medical Services at the Hospital. First, the letter of complaint was addressed to “Dear Robert”, not to the “Administrator of the CPC”. Second, although the complainant stated his or her wish to “make a formal notification to the Canberra Hospital Clinical Review Committee and also the Clinical Privileges Committee...”, the complainant also advised that he/she expected that the complaint would be notified by “the Canberra Hospital Administration” to “the relevant authorities i.e. the ACT Medical Board/ AHPRA.” Dr Griffin was part of the Canberra Hospital Administration in that he held the position of Locum Executive Director of Medical Services at the Hospital. In Dr Griffin’s words, that put him in the position of a “chief doctor at a hospital”. The subject matter of the complaint was alleged unprofessional conduct threatening patient safety, a subject matter of interest to both the CPC and the Board.
In his role as a “gatekeeper” in relation to complaints, and in accordance with the request of the complainant, Dr Griffin dealt with the complaint in several ways. First, in his capacity as Administrator of the CPC, Dr Griffin notified Dr Chong. Second, as the Acting Executive Director Medical Services at the Hospital, Dr Griffin contacted Dr Bradbury at the Board and forwarded the complaint to Mr Logan at AHPRA under the signature block “A/Executive Director Medical Services The Canberra Hospital and Health Services”. Before making a notification to the Board, Dr Griffin undertook his own inquiries in relation to the relevant procedure and spoke to Dr Ashman. By the time that Dr Griffin notified the Board, he was of the opinion that Dr Hocking’s conduct fell short of accepted professional standards and should be investigated by the Board, i.e. it was “notifiable conduct” within the meaning of s 140(d) of the National Law. At that stage, no CPC had been constituted.
Dr Griffin formed the requisite belief in the course of practising his profession, at least because he formed it in the course of his role as the Locum Executive Director Medical Services at the Hospital, which made him the “chief doctor at a hospital”.
The second limb to Dr Hocking’s first contention is that, even if Dr Griffin was prima facie required to make a mandatory notification under s 141(1), the terms of s 141(4) of the National Law exempted him from mandatory disclosure as s 125 of the Health Act precluded mandatory disclosure.
Section 125 of the Health Act creates an offence of recklessly divulging protected information. Inter alia, where another Act “prohibits” the disclosure of information, s 141(4)(d) of the National Law exempts the information from being the subject of a s 141 mandatory notification. Prohibited behaviour and offending behaviour are not necessarily identical. While the Health Act creates an offence, it does not “prohibit” disclosure. Section 237 protects notifiers who act in good faith from criminal liability. The s 3(2)(a) and (e) objectives of the National Law focus on protection of the public and the public interest. The mandatory notification provisions of the National Law are designed to further those objectives. In that context, it is arguable that s 141(4)(d) of the National Law should be read narrowly such that, while it exempts “prohibited” disclosure, it does not exempt offending behaviour that is neutralised by s 237(2).
But for the purposes of argument it can be assumed that a disclosure that contravenes s 125 of the Health Act is also an exempt “prohibited” disclosure under s 141(4)(d)(ii) of the National Law.
Even if Dr Griffin formed a belief about Dr Hocking’s conduct solely because of his administrative role with the CPC, his belief was not exempted from the mandatory notification requirements of the National Law. He did not form the belief “in the course of exercising functions as a member of a ... body approved or authorised under an Act of a participating jurisdiction”, which is the basis for exemption under s 141(4) (d). Dr Griffin had administrative functions in relation to the CPC but he was not a member of that body. Indeed there was no CPC in existence at the time of notification.
There is a further reason why the Griffin Notification did not contravene the Health Act. The Health Act does not protect documents; it protects specific information that is obtained by an information holder because of the exercise of a function under the Health Act. In Schulman v Abbott Tout Lawyers (No2) Rares J considered s 723 of the Legal Profession Act 2004 (NSW), which provides that ‘a person who discloses any information obtained in the administration of this Act is guilty of an offence’.[62] An issue arose as to whether a copy of a letter allegedly provided to the Law Society in the course of an investigation of a complaint of professional misconduct made by the applicants could be used by the applicants in proceedings. Rares J permitted the use of the letter on the basis that:
No particular information contained in the copy letter has been identified as possessing the character of information that, itself, was obtained in the administration of the Act, as opposed to being information that was otherwise available from the copy letter.[63]
By analogy with the circumstances in Schulman, the Health Act does not make it an offence to disclose information that is already known to the discloser because he or she has received the information otherwise than in the exercise of the relevant function. Dr Griffin received the relevant information not only through the Griffin Notification but also through the identical document received by Dr Ashman, and he became aware of the contents of the Ashman Complaint before he notified the Board. The Ashman Complaint is independent of any s 125 argument.
The Court also rejects the argument advanced by Dr Hocking that an anonymous notification is not a “mandatory notification” within the meaning of the National Law because the concept of an anonymous mandatory notification is inconsistent with the provisions and intent of the National Law in that the s 141 references to “a registered health practitioner” and to the formation of a “reasonable belief” are requirements designed to protect practitioners about whom complaint is made. Section 141 of the National Law is not designed to protect practitioners against unwarranted complaints; it is designed to require practitioners to make complaints that may, upon further investigation, be shown to be warranted and to ensure that practitioners do not adhere to a code of silence in relation to significant misconduct by other practitioners. The provision gives effect to the s 3(2)(a) objective of protection of the public.
Was there another lawful basis upon which the Griffin Notification was made?
Dr Griffin submits that, if the notification was not a mandatory notification, then it was at least a “voluntary notification” under s 144(1)(a) of the National Law and that, regardless of the route by which it reached its destination, it was properly before the Board.
Dr Hocking responds that the notification cannot be characterised as a voluntary notification because Dr Griffin himself stated in his notification and in evidence that he made the notification because he felt obliged to do so.
In relation to voluntary notification, both the category of notifier and the grounds for notification are much broader than the grounds requiring mandatory notification. Sections 144 of the National Law provides that a voluntary notification may be made to AHPRA on a number of grounds, including “that the practitioner's professional conduct is, or may be, of a lesser standard than that which might reasonably be expected of the practitioner by the public or the practitioner's professional peers”. Under s 145, a voluntary notification may be made by “any entity that believes that a ground on which a voluntary notification may be made exists”. The requisite belief need not be formed by a practitioner in the course of his or her practice. The belief need not be reasonable.
Show cause process
(1)If a National Board is proposing to take relevant action in relation to a registered health practitioner or student, the Board must—
(a)give the practitioner or student written notice of the proposed relevant action; and
(b)invite the practitioner or student to make a written or verbal submission to the Board, within the reasonable time stated in the notice, about the proposed relevant action.
(2)After considering any submissions made by the registered health practitioner or student in accordance with this section, the National Board must decide to—
(a)take no action in relation to the matter; or
(b)do either or both of the following—
(i)take the proposed relevant action or other relevant action;
(ii)refer the matter to another entity, including, for example, a health complaints entity, for investigation or other action.
(3)This section does not apply if—
(a)a National Board is proposing to take relevant action in relation to a registered health practitioner or student; and
(b)the National Board has, in relation to the matter that forms the basis for the relevant action—
(i)investigated the registered health practitioner or student under Division 8; or
(ii)conducted a health assessment or performance assessment of the registered health practitioner or student under Division 9.
Division 12Referring matter to responsible tribunals
Matters to be referred to responsible tribunal
(1)A National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if—
(a)for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason—
(i)the practitioner has behaved in a way that constitutes professional misconduct; or
(ii)the practitioner’s registration was improperly obtained because the practitioner or someone else gave the Board information or a document that was false or misleading in a material particular; or
(b)for a registered health practitioner or student, a panel established by the Board requires the Board to refer the matter to a responsible tribunal.
(2)The National Board must—
(a)refer the matter to—
(i)the responsible tribunal for the participating jurisdiction in which the behaviour the subject of the matter occurred; or
(ii)if the behaviour occurred in more than one jurisdiction, the responsible tribunal for the participating jurisdiction in which the practitioner’s principal place of practice is located; and
(b)give written notice of the referral to the registered health practitioner or student to whom the matter relates.
Parties to the proceedings
The parties to proceedings relating to a matter being heard by a responsible tribunal are—
(a)the registered health practitioner or student who is the subject of the proceedings; and
(b)the National Board that referred the matter to the tribunal.
Division 13Appeals
Appellable decisions
(1)A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision—
(a)a decision by a National Board to refuse to register the person;
(b)a decision by a National Board to refuse to endorse the person’s registration;
(c)a decision by a National Board to refuse to renew the person’s registration;
(d)a decision by a National Board to refuse to renew the endorsement of the person’s registration;
(e)a decision by a National Board to impose or change a condition on a person’s registration or the endorsement of the person’s registration, other than—
(i)a condition relating to the person’s qualification for general registration in the health profession; and
(ii)a condition imposed by section 112 (3) (a);
(f)a decision by a National Board to refuse to change or remove a condition imposed on the person’s registration or the endorsement of the person’s registration;
(g)a decision by a National Board to refuse to change or revoke an undertaking given by the person to the Board;
(h)a decision by a National Board to suspend the person’s registration;
(i)a decision by a panel to impose a condition on the person’s registration;
(j)a decision by a health panel to suspend the person’s registration;
(k)a decision by a performance and professional standards panel to reprimand the person.
(2)For the purposes of subsection (1), the appropriate responsible tribunal for an appellable decision is—
(a)for a decision to take health, conduct or performance action in relation to a registered health practitioner or student—
(i)the responsible tribunal for the participating jurisdiction in which the behaviour the subject of the decision occurred; or
(ii)if the behaviour the subject of the decision occurred in more than one jurisdiction, the responsible tribunal for the participating jurisdiction in which the practitioner’s principal place of practice is located; or
(b)for another decision in relation to a registered health practitioner, the responsible tribunal for the participating jurisdiction in which the practitioner’s principal place of practice is located; or
(c)for another decision in relation to a student, the responsible tribunal for the participating jurisdiction in which the student is undertaking the approved program of study or clinical training; or
(d)for a decision in relation to another person—
(i)the responsible tribunal for the participating jurisdiction in which the person lives, or
(ii)if the person does not live in a participating jurisdiction, the responsible tribunal for the participating jurisdiction nominated by the National Board that made the appellable decision and specified in the notice given to the person of the appellable decision.
Parties to the proceedings
The parties to proceedings relating to an appellable decision being heard by a responsible tribunal are—
(a)the person who is the subject of the appellable decision; and
(b)the National Board that—
(i)made the appellable decision; or
(ii)established the panel that made the appellable decision.
Costs
The responsible tribunal may make any order about costs it considers appropriate for the proceedings.
Decision
(1)After hearing the matter, the responsible tribunal may—
(a)confirm the appellable decision; or
(b)amend the appellable decision; or
(c)substitute another decision for the appellable decision.
(2)In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision.
Relationship with Act establishing responsible tribunal
This Division applies despite any provision to the contrary of the Act that establishes the responsible tribunal but does not otherwise limit that Act.
Division 14Miscellaneous
Notice from adjudication body
(1)If an adjudication body, other than a court, makes a decision in relation to a health practitioner or student registered in a health profession, it must give written notice of the decision to the National Board established for the profession.
(2)The notice must state—
(a)the decision made by the adjudication body; and
(b)the reasons for the decision; and
(c)the date the decision takes effect; and
(d)any action the National Board must take to give effect to the decision.
Implementation of decisions
(1)A National Board must give effect to a decision of an adjudication body unless the decision is stayed on appeal.
(2)Without limiting subsection (1), the National Board must, if the notice given to the Board states that a health practitioner’s or student’s registration is cancelled, remove the practitioner’s or student’s name from the appropriate register kept by the Board.
National Board to give notice to registered health practitioner’s employer
(1)This section applies if—
(a)a National Board—
(i)decides to take health, conduct or performance action against a registered health practitioner; or
(ii)receives notice from an adjudication body that the adjudication body has decided to take health, conduct or performance action against a registered health practitioner; or
(iii)receives notice from a co-regulatory authority that an adjudication body in the co-regulatory jurisdiction has decided to take health, conduct or performance action against a registered health practitioner; and
(b)the National Board has been advised by the registered health practitioner that the practitioner is employed by another entity.
NoteUnder section 132, a National Board may ask a registered health practitioner to give the Board information about whether or not the practitioner is employed by another entity and, if so, for the employer’s details.
(2)The National Board must, as soon as practicable after making the decision or receiving the notice, give written notice of the decision to take health, conduct or performance action against the registered health practitioner to the practitioner’s employer.
Effect of suspension
If a person’s registration as a health practitioner or student is suspended under this Law the person is taken during the period of suspension not to be registered under this Law, other than for the purposes of this Part.
Supreme Court Act 1933 (ACT)
Section 20
Jurisdiction and powers of Supreme Court
(1)The court has the following jurisdiction:
(a)all original and appellate jurisdiction that is necessary to administer justice in the Territory;
(b)jurisdiction conferred by a Commonwealth Act or a law of the Territory.
(2)Unless it is required to do so by or under a Commonwealth Act or a law of the Territory, the court is not bound to exercise its powers if it has concurrent jurisdiction with another court or tribunal.
Section 34B
34BHabeas corpus and prerogative orders
(1)The Supreme Court has power to grant any relief by way of a habeas corpus order or prerogative order.
(2)In this section:
habeas corpus order means an order the relief under which is in the nature of, and to the same effect as, relief by way of a writ of habeas corpus.
prerogative order means an order the relief under which is in the nature of, and to the same effect as, relief by way of—
(a)a writ of mandamus, prohibition or certiorari; or
(b)an information in the nature of quo warranto.
relief includes remedy.
Supreme Court Act 1970 (NSW)
Section 23
Jurisdiction generally
The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales.
Civil Procedure Rules 2006 (ACT)
Rule 1600
Orders—required by nature of case
(1)On the application of a party to a proceeding, the court may, at any stage of the proceeding, make any order that the nature of the case requires.
Note 1Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.
Note 2Order is defined in the dictionary to include judgment (see also def made).
(2)The court may make the order even if there is no claim for relief extending to the order in the originating process, statement of claim, counterclaim or similar document.
Rule 3554
Judicial review—relief previously granted by prerogative writ etc
(1)If, before the commencement of these rules, the court had jurisdiction to grant any relief by way of a writ of mandamus, prohibition or certiorari, or on an information in the nature of quo warranto, the court continues to have jurisdiction to grant the relief.
(2)However, the court may grant the relief only by making an order under these rules in the nature of, and to the same effect as, the relief that would have been available before the commencement of these rules.
(3)For example, if—
(a)someone acts in an office in which the person is not entitled to act; and
(b)an information in the nature of quo warranto would, but for rule 3553 (2) (Judicial review—prerogative writs etc abolished), lie against the person;
the court may—
(c)grant an injunction restraining the person from acting in the office; and
(d)declare the office to be vacant.
NoteAn example is part of these rules, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
Rule 3556
Judicial review—application etc
(1)A statutory order of review or prerogative relief must be sought by way of judicial review by originating application.
Note 1See approved form 3.45 (Originating application—judicial review) AF2006-373.
Note 2Div 2.2.3 (Originating applications) contains provisions about the content of originating applications, the filing and service of originating applications, etc. The division applies, subject to this part (see r 22 (Application—ch 2)), to an application for a statutory order of review or prerogative relief.
(2)The application must state—
(a)if the grounds of the application include an allegation of fraud or bad faith—particulars of the fraud or bad faith on which the plaintiff relies; and
(b)if the application is an application for prerogative relief and the grounds of the application include an allegation of a mistake or omission in an order or proceeding—particulars of the mistake or omission on which the plaintiff relies; and
(c)if the application is for a quo warranto order in relation to a person’s office—particulars of the objection to the person’s entitlement to act in the office.
NoteRule 60 (3) (Originating application—content etc) provides that the originating application must state specifically the orders or other relief sought in the proceeding.
(3)A person may apply for prerogative relief if the person’s interests are, or would be, adversely affected in or by the matter to which the application relates.
(4)A person must be included as a defendant to the application if—
(a)the application relates to a decision made by an entity authorised to make the decision, and the person—
(i)appeared, or was given leave to appear, before the entity; and
(ii)would be directly affected by the relief sought in the application or is interested in maintaining the decision; or
(b)for a statutory order of review—the application relates to conduct engaged in, or proposed to be engaged in, by an entity for the purpose of making a decision to which the Judicial Review Act applies, and the person—
(i)appeared, or was given leave to appear, before the entity; and
(ii)would be directly affected by the relief sought in the application or is interested in maintaining the decision; or
(c)for a statutory order of review—the application relates to a failure by an entity to make a decision to which the Judicial Review Act applies, and the person—
(i)appeared, or was given leave to appear, before the entity; and
(ii)would be directly affected by the relief sought in the application.
NoteFor an application for a statutory order of review, the Judicial Review Act, s 12 (Application to be made a party to a proceeding) provides that a person interested in a decision, conduct or failure in relation to which an application has been made to the Supreme Court under that Act may apply to the Supreme Court to be made a party to the application.
(5)If the application relates to an order of a judicial officer of a court or member of a tribunal, the application must name as defendant the court or tribunal and not the judicial officer or member personally.
(6)The application must be accompanied by a supporting affidavit.
(7)The supporting affidavit must contain—
(a)the grounds relied on in support of the relief sought; and
(b)the facts relied on.
(8)If subrule (2) (b) applies, but has not been complied with, a ground mentioned in the subrule must not be relied on.
(9)If subrule (2) (c) applies, but has not been complied with, a ground mentioned in the subrule must not be relied on without the court’s leave.
Rule 3559
Judicial review—other prerogative relief etc
On an application for prerogative relief—
(a)any prerogative relief, declaration or injunction may be sought instead of, or in addition to, any other prerogative relief, declaration or injunction if it relates to the same matter; or
(b)the court may grant the prerogative relief, declaration or injunction it considers the most appropriate available, even if it is not included in the application.
NoteFor statutory orders of review, see the Judicial Review Act, s 8 (Effect of Act on other rights) and s 11 (Application for order of review not limited to grounds in application).
[1] National Law s 159.
[2] National Law s 3(1)(a).
[3] National Law s 3(2)(a).
[4] National Law s 3(1)(e).
[5] National Law ss 3(3)(a), 3(3)(c).
[6] National Law s 10.
[7] National Law s 25.
[8] National Law s 31(2).
[9] National Law s 32(2)(b).
[10] National Law ss 35(1)(h), 35(1)(j).
[11] National Law s 35(2).
[12] National Law ss 36, 37.
[13] National Law s 141.
[14] National Law s 140.
[15] National Law s 145.
[16] National Law s 144.
[17] National Law s 159(2).
[18] National Law s 160.
[19] National Law s 160(2).
[20] National Law s 163.
[21] National Law s 161.
[22] National Law s 161(3).
[23] National Law s 162.
[24] National Law s 166.
[25] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581.
[27] Civil Procedure Rules 2006 (ACT) r 1600(2).
[28] Civil Procedure Rules 2006 (ACT) r 3559(b).
[29] (2001) 208 CLR 199.
[30] (2004) 185 FLR 1.
[31] (2009) 231 FLR 224, 230.
[32] (2013) 277 FLR 61, 80-1.
[33] Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-6 (Brennan J); cited with approval in Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[34] Prescott v Legal Practitioners Disciplinary Tribunal [2009] SASC 309 [117].
[35] Momcilovic v The Queen (2011) 245 CLR 1, 61 (French CJ) citing Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581-582 (Mason CJ, Dawson, Toohey and Gaudron JJ).
[36] Forster v Jododex (1972) 127 CLR 421, 437 (Gibbs J).
[37] (1992) 175 CLR 564, 581-2; 595-6 (Brennan J concurring).
[38] (1988) 194 CLR 247.
[39] (1995) 183 CLR 552, 558.
[40] (1949) 78 CLR 389, 400.
[41] Dibeek Holdings Pty Ltd v Notari (1997) 141 FLR 364, 374 (Higgins J); Australia and New Zealand Banking Group Limited v Manny & Ors [2013] ACTSC 116 (12 June 2013) [39].
[42] (1979) 190 CLR 142, 216; see, also 206-7 (Barwick CJ), 230-1 (Mason J, as he then was).
[43] See also Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295 (12 December 2012) [119].
[44] See Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 580.
[45] Counsel for both parties relied upon the discussion in Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Lawbook Co, 5th ed, 2013) 781-783.
[46] Director-General, Department of Trade & Investment, Regional Infrastructure and Services v Lewis (2012) 301 ALR 420, 450 – 451 (McColl JA); 451-452 (Sackville AJA).
[47] Director-General, Department of Trade & Investment, Regional Infrastructure and Services v Lewis (2012) 301 ALR 420, 451-452 (Sackville AJA).
[48] Gouriet v Union of Post Office Workers [1978] AC 435, 481 (Lord Wilberforce), 490 (Viscount Dilhorne), 497 (Lord Diplock).
[49] (1979) 24 ALR 411, 416.
[50] (2000) 97 FCR 9, 22.
[51] (1988) 15 NSWLR 596.
[52] (2012) 205 FCR 120.
[53] [2012] VSCA 295 (12 December 2012) [108] (disagreeing with decisions of the South Australian Health Practitioners Tribunal, the State Administrative Tribunal of Western Australia and the Tasmanian Health Practitioners Tribunal).
[54] (1989) 170 CLR 1, 35-36; cited with approval in Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[55] (2008) 235 CLR 286, 296-7.
[56] Commonwealth Administrative Review Committee, Report (August 1971) 50; See also, Peter Cane, Administrative Tribunals and Adjudication (Hart Publishing, 2010) 57-67.
[57] (2008) 235 CLR 286, 296-7.
[58] (1979) 46 FLR 409, 419 (this case concerned, inter alia, whether the Commonwealth Administrative Appeals Tribunal had made an independent assessment in relation to a deportation order made by the Minister against an alien).
[59] (1997) 141 FLR 364.
[60] Dibeek Holdings Pty Ltd v Notari (1997) 141 FLR 364, 371.
[61] Dibeek Holdings Pty Ltd v Notari (1997) 141 FLR 364, 373.
[62] [2010] FCA 526 (17 May 2010).
[63] Schulman v Abbott Tout Lawyers (No 2) [2010] FCA 526 (17 May 2010) [17].
[64] (2005) 224 CLR 44.
[65] See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and the recent decision of the High Court in Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618.
[66] (1984) 156 CLR 296, 326.
[67] [1949] 1 All ER 109, 118; approved by the High Court in NCSC v News Corp Ltd (1984) 156 CLR 296, 320 (noting approval in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, 552-553).
[68] (2012) 301 ALR 420, 434.
[69] Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, 437-438, 446.
[70] McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504, 517 (Basten JA).
[71] (1998) 84 FCR 87, 104.
[72] (2001) 205 CLR 507, 531- 532.
[73] Spencer v Bamber [2012] NSWCA 274 (5 September 2012) [16].
[74] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 531, see also 563, 566 and 598.
[75] (2000) 205 CLR 337, 345 (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[76] (2013) 304 ALR 359.
[77] (2008) 72 NSWLR 504
[78] (2008) 72 NSWLR 504, 507-508.
[79] (2008) 72 NSWLR 504, 507.
[80] McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504, 524 (Basten JA).
[81] (2007) 27 VAR 271, 284.
[82] (1997) 191 CLR 1, 50-51; cited in McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504, 511.
[83] (2008) 72 NSWLR 504, 510 - 513 (Spigelman CJ); 523 (Basten JA), see also 553 - 557 (Campbell JA).
[84] (2008) 72 NSWLR 504, 523.
[85] (2008) 72 NSWLR 504, 511-512.
[86] (1910) 10 CLR 243.
[87] (1972) 128 CLR 509.
[88] [1977] 1 NSWLR 378.
[89] [2009] NSWSC 1207 (12 November 2009).
[90] [2010] SASC 308 (9 November 2010).
[91] Taylor v The Medical Board of South Australia [2010] SASC 308 (9 November 2010) [24].
[92] Taylor v The Medical Board of South Australia [2010] SASC 308 (9 November 2010) [26].
[93] National Law s 149.
[94] National Law s 151.
[95] National Law s 156.
[96] National Law s 157.
[97] National Law s 199.
[98] National Law s 161(3).
[99] National Law s 167.
[100] National Law s 179.
[101] National Law s 193.
[102] National Law s 194.
[103] (1959) 101 CLR 298.
[104] [2004] NSWCA (9 June 2004) 123 [54].
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