King v Health Care Complaints Commission

[2012] HCATrans 115

[2012] HCATrans 115

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S412 of 2011

B e t w e e n -

DR VICTOR KING

Applicant

and

HEALTH CARE COMPLAINTS COMMISSION

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MAY 2012, AT 10.35 AM

Copyright in the High Court of Australia

MR J.E. MACONACHIE, QC:   I appear with my friend, MS P.A. HORVATH, for the applicant, if your Honours please.  (instructed by Holman Webb Lawyers)

MR P.M. STRICKLAND, SC:   If the Court pleases, I appear with my learned friend, MS K.L. EASTMAN, for the respondent.  (instructed by Health Care Complaints Commission)

GUMMOW J:   Yes, Mr Maconachie.

MR MACONACHIE:   Can I take your Honours immediately to something that was sent to your Honours yesterday - that is, the decision of the New South Wales Court of Appeal in the matter of Lucire v Parmegiani and in particular can I take your Honours first to paragraph 34 of that judgment?

GUMMOW J:   What will that tell us?

MR MACONACHIE:   That will tell you that in the context of a defamation case the question of the characterisation of what is a complaint was dealt with by the Court of Appeal in two places in a way consistent with the manner in which we contend the Court of Appeal ought to have considered characterised a complaint for the purposes of this case.  That is all it does, that is to say, that it is yet another indication that there are conflicting decisions on the question of the construction of the word “complaint” and therefore as a matter of general importance as well as in the particular circumstances of this case this Court should intervene.

Could I then take your Honours to section 80 of the Health Care Complaints Act which you will find at page 49 of the bundle which came up yesterday morning?  Section 80 provides that “The Commission has the following functions” and, therefore, powers and duties.  Section 80(1)(c) provides:

The Commission has the following functions:

. . . 

to make complaints concerning the professional conduct of health practitioners and to prosecute those complaints –

Could I then take you to the application book at page 85?  At paragraph 169 of the judgment Acting Justice Handley said in the last line of that paragraph:

Its –

meaning the Health Complaints Commission –

statutory functions and those of the Director do not include making complaints.

There was either a misconstruction of section 80 or the provisions of section 80 were entirely overlooked.  But whatever be the case, on the central question of what was the complaint before the Tribunal the majority of the Court of Appeal misconstrued the Act, failed to properly apply the law, failed to determine in accordance with law what was the matter before the Tribunal, what circumscribed its jurisdiction, what it was that the applicant in this case was called upon to answer, and thereby ‑ ‑ ‑

GUMMOW J:   Well, procedural fairness cases usually have a fairly practical slant to them.  What is your response to paragraph 53 of the respondent’s written submissions at page 128 of the application book?

MR MACONACHIE:   The practical justice point and the jurisdictional point that we advance are much the same thing.  That is to say that Dr King did not have to answer a case that was put on the basis of sexual misconduct unless it was with a degree of precision made plain to him that that is what he was required to answer.  The original complaints, as your Honours will have seen, were different both in form and in substance, as we put in our written submissions, to the notice of complaint held, rightly so, we say, by Justice MacFarlan to be the document which referred the matter, the complaint, Dr King if you like, to the Tribunal.

The practical injustice, as Justice MacFarlan found, the practical injustice, was that he was, as it were, ambushed on the first day of the hearing before the Tribunal with the allegation of sexual misconduct being made essentially for the first time in the context of the proceedings before the Tribunal.

HAYNE J:   Do I find the notice of complaint at 41 and following of the application book?

MR MACONACHIE:   Well, you will find at 41 and following those matters which were, as it were, particularised in the notice of complaint, which is in its entirety to be found at 113.

HAYNE J:   What do particulars 2.2.2, 2.2.3, 3.3.2, 3.3.3 – I suspect it can be amplified – convey to the ordinary reader?

MR MACONACHIE:   They convey, your Honour, something less than, something different from, sexual misconduct; they convey something in the nature of a failure to comply with, a failure to achieve appropriate standards of clinical practice.  As Justice MacFarlan pointed out in his reasons for judgment, that is a long way short of an allegation, the giving of notice of, the most serious matter, that is, sexual misconduct, which was found by the Tribunal.

We do not suggest for a moment that it was necessary that there be, as it were, a forms of action pleading or anything like it, but when the most serious conduct found is something of a nature and character which is entirely different from that which is conveyed by the somewhat anodyne words of “contrary to recognized clinical standards” then, in our submission, this Court should intervene to correct what is plainly an error or law, that is to say, that in determining what was the complaint and in determining what it was that was before the Tribunal, in determining what it was that as a matter of practical justice the doctor had to answer, the central question was what was the complaint?

Acting Justice Handley agreed with the presiding judge, Justice McColl, held that there was no power to make a complaint and, therefore, that which was before the Tribunal headed “Notice of Complaint” but that is a matter of form perhaps, was something in the nature of an aide‑mémoire, whereas section 80(1)(c) and section 90B of the Health Care Complaints Commission Act gave to the director of proceedings the exclusive right to determine what would be prosecuted, in what form it would be prosecuted, and therefore a power to make a complaint which was, as our submissions point out, different both in form and in substance to the original complaints that had been made by the women whose original complaints were put before the Health Care Complaints Commission, which were investigated, one of which was not proceeded with, and the form of that which was referred to the Medical Tribunal was significantly different from that which was contained in the original complaints.

The real point is that when the Tribunal – a matter of some seriousness for a medical practitioner – when the Tribunal, as it were, called upon him to make answer, that which had been referred to the Tribunal made no mention at all of sexual misconduct, and as Justice MacFarlan, we say, powerfully demonstrates in his judgment, the conduct that is referred to in that part of the complaint that Justice Hayne referred me to is equally consistent with an assertion of incompetence or clumsiness or the like. 

If that had been the finding of the Medical Tribunal, that it was clumsiness, that it was ineptitude rather than conduct of a sexual misconduct kind, that which they characterised as the most significant finding, the outcome for the doctor may have been entirely different, the

case should be dealt with by the tribunal according to law and according to proper precepts of notice, and circumscription of what it is that is to be inquired into.

That, your Honours, is the central element of our complaint and the central basis upon which we put the case before you as being one which is requiring of special leave – or entitled to special leave – because it was not done according to law and the decision of the Court of Appeal is wrong fundamentally in an important respect in that it either misconstrues or overlooks the power to make a complaint which was central to the question that was litigated, what was the complaint and what was the circumscription of that which the doctor had to answer?  They are my submissions.

GUMMOW J:   Thank you, Mr Maconachie.  We do not need to call on you, Mr Strickland.

There are insufficient prospects of success in demonstrating error in the decision of the Court of Appeal with respect to what has been described as the jurisdiction argument and the procedural fairness argument to warrant a grant of special leave.  Special leave is refused with costs.

AT 10.50 AM THE MATTER WAS CONCLUDED