Kirby v Health Care Complaints Commission

[2020] NSWSC 1207

Supreme Court

New South Wales

Medium Neutral Citation:

Kirby v Health Care Complaints Commission [2020] NSWSC 1207

Hearing dates:

13 December 2019

Date of orders:

7 September 2020

Decision date:

07 September 2020

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

THE COURT ORDERS THAT:

(1) The amended summons filed 2 May 2019 is dismissed.

(2) Costs are reserved.

Catchwords:

ADMINISTRATIVE LAW – Judicial review –

Health Care Complaints Act 1993 (NSW) s 90B – Whether NCAT had jurisdiction to hear disciplinary proceedings against the plaintiff – Whether NCAT is a “disciplinary body” under s 4 – Application dismissed

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 3, 7, 16, 17

Health Care Complaints Act 1993 (NSW), ss 3, 3A, 4, 80, 90B

Interpretation Act 1987 (NSW), s 33

Health Practitioner National Regulation Law (NSW) No 86a, ss 4, 139e, 145C, 145O, 149A, 149C, 165B

Supreme Court Act 1970 (NSW), s 69

Cases Cited:

Davis v City North Infrastructure Pty Ltd [2012] 2 Qd R 103

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362

Category:

Principal judgment

Parties:

David William Kirby (Plaintiff)
Health Care Complaints Commission (Defendant)

Representation:

Counsel:
J Sheller SC with D Tang (Plaintiff)
P Lowson (Defendant)

Solicitors:
Graham Billing & Co (Plaintiff)
Health Care Complaints Commission (Defendant)

File Number(s):

2019/135976

Judgment

1. HER HONOUR: The plaintiff seeks a judicial review of a decision of Senior Member Britton (“the Senior Member”) of the New South Wales Civil and Administrative Tribunal NSW (“the Tribunal”) dated 3 July 2018.

2. By amended summons filed 2 May 2019, the plaintiff seeks firstly, an extension of time to bring the amended summons pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”); secondly, an order restraining the Health Care Complaints Commission (“the Commission”) from maintaining and prosecuting disciplinary proceedings filed in the Tribunal on 3 July 2018; thirdly, an order preventing the Commission from taking any further steps in relation to the prosecution of the plaintiff; and finally, in the alternative to the first order, an order quashing the decision of the Commission dated 2 July 2018.

3. The plaintiff is Dr David William Kirby. The defendant is the Commission. The parties relied upon a joint court book (Ex B).

4. At the hearing of these proceedings, the plaintiff did not seek to rely on the matters in order [4] of the relief sought, nor did he press the amended grounds of judicial review relating to the judgment of the Senior Member of the Tribunal.

The legislative framework

5. The plaintiff is a dentist and a registered health practitioner within the meaning of the s 4 of the Health Practitioner National Regulation Law (NSW) No 86a (“the National Law”).

6. The Commission is a statutory body representing the Crown pursuant to s 3A of the Health Care Complaints Act 1993 (NSW).

7. The functions of the Commission are set out in s 80 of the Health Care Complaints Act. Section 80 relevantly states:

“80 Functions of Commission

(1) The Commission has the following functions:

(a) to receive and deal under this Act with the following complaints:

• complaints relating to the professional conduct of health practitioners

• complaints concerning a health service that affects, or is likely to affect, the clinical management or care of individual clients

• complaints referred to it by a professional council under the Health Practitioner Regulation National Law (NSW),

(b) to assess those complaints and, in appropriate cases, to investigate them, refer them for conciliation or deal with them under Division 9 of Part 2,

(c) to make complaints concerning the professional conduct of health practitioners and to prosecute those complaints before the appropriate bodies, including professional councils, professional standards committees and tribunals,

(d) to report on any action the Commission considers ought to be taken following the investigation of a complaint if the complaint is found to be justified in whole or part,

…

(2) The Commission also has such other functions as are conferred or imposed on it by or under this or any other Act.

(3) A code of practice developed by the Commission under subsection (1) (i) has no effect unless it is incorporated in, or adopted by, the regulations.

(4) The Commission may exercise its functions even though:

(a) the Commission has not developed a code of practice in relation to those functions, or

(b) a code of practice has been developed but has not been incorporated in, or adopted by, the regulations.

….”

8. Section 3 of the Health Care Complaints Act provides that the primary object of the Act is to establish the Commission as an independent body for the purposes of receiving and assessing complaints under the Act, investigating and assessing those complaints and whether they should be prosecuted, and resolving or overseeing their resolution.

9. In carrying out its functions, the Commission must have regard to the following principles:

1. that it is to be accountable to the New South Wales community: s 3A(5B)(a); and

2. that its decision-making processes are to be open, clear and understandable for clients and health service providers: s 3A(5B)(b).

The National Law

10. The Commission is empowered to refer complaints made against health practitioners to the Tribunal under s 145C(1)(a) of the National Law. It reads:

“145C Courses of action available to the Commission on complaint [NSW]

(1) The following courses of action are available to the Commission in respect of a complaint made to the Commission, or that the Commission has decided to make, about a registered health practitioner or student –

(a) the Commission may refer the complaint to the Council for the health profession in which the practitioner or student is registered or, after consultation with a Council, to a Committee or the Tribunal;

…”

11. Under s 145O of the National Law, the Commission is under a duty to refer a complaint to the Tribunal if it forms the opinion that the subject matter of the complaint, if proven, could justify the suspension or cancellation of the health practitioner’s registration. As the complaint against the plaintiff alleged professional misconduct, suspension or cancellation was available: see s 139E.

12. Section 165H of the National Law provides that the Tribunal does not have to conduct an inquiry into a compliant if it is admitted, but that it must if the complaint is not. Pursuant to s 149 of the National Law, the Tribunal has powers upon finding the complaint proved, or in circumstances where the complaint is admitted in writing by the registered health practitioner. The powers that may be exercised by the Tribunal are set out at ss 149A to 149C of the National Law, and include the power to suspended or cancel the registered health practitioner’s registration.

13. Division 10 of the National Law contains s 165B. It relevantly reads:

“165B Constitution of Tribunal for complaints, applications and appeals [NSW]

(1) If a complaint is referred to the Tribunal or an application or appeal is made to the Tribunal under this Law –

(a) the Tribunal must inform the Council for the health profession of the referral, application or appeal; and

(b) the Council for the health profession must select 3 persons (whether or not they are currently Division members) to sit as members of the Tribunal in the proceedings.

…

(2) Except as provided by subsections (4), (5) and (SA), the Tribunal, when conducting an inquiry or hearing an appeal under this Law, is to be constituted by –

(a) 1 Division member who is an Australian lawyer of at least 7 years’ standing or, in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer; and

(b) 2 health practitioners selected for appointment by the Council as occasional members under subsection (1) who are registered in the same health profession as the health practitioner or student the subject of the inquiry or appeal; and

(c) 1 lay person (that is, a person who is not registered in the health profession) selected for appointment by the Council as an occasional member under subsection (b) from among a panel of lay persons for the time being nominated by the Minister.

(3) If the health profession has divisions, at least one and, if practicable, both, of the health practitioners referred to in subsection (2) (b) must be registered in the same division of the health profession as the health practitioner or student the subject of the inquiry or hearing.

…

(5A) The Tribunal, when constituted to make an ancillary decision or an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013, is to be constituted by the Tribunal List Manager or the member referred to in subsection (2)(a).

(6) A person is not to be selected to sit on the Tribunal if the person is a member of the Council.

(7) An inquiry or appeal conducted or heard by the Tribunal under this Law may relate to more than one health practitioner or student if the complaint or complaints the subject of the inquiry or appeal arise from the same conduct.”

The Health Care Complaints Act

14. Section 90B(1) of the Health Care Complaints Act confers functions on the director of the Commission, including determining whether a complaint is to be prosecuted before a disciplinary body. If the Commission’s Director of Proceedings determines that the Commission is going to prosecute a complaint, then he or she has the function of prosecuting that complaint under s 90B(1)(a1).

15. Section 90B relevantly reads:

“90B FUNCTIONS OF DIRECTOR OF PROCEEDINGS

(1) The following functions of the Commission are to be exercised only by the Director of Proceedings in relation to any complaint referred to the Director by the Commission:

(a) to determine whether the complaint should be prosecuted before a disciplinary body and, if so, whether it should be prosecuted by the Commission or referred to another person or body for prosecution,

(a1) if the Director determines that the complaint should be prosecuted before a disciplinary body by the Commission, to prosecute the complaint before the disciplinary body,

(b) to intervene in any proceedings that may be taken before a disciplinary body in relation to the complaint.

(2) In addition, the Director of Proceedings has any other functions conferred or imposed on the Director by or under this or any other Act.

(2A) Without limiting subsection (2), the Director of Proceedings may exercise any other functions conferred or imposed on the Commission by another Act and delegated to the Director under section 84.

(3) The Director of Proceedings:

(a) may at any time consult with a professional council in relation to the exercise of any of the Director's functions, and

(b) must consult with the appropriate professional council (if any) before determining whether or not a complaint should be prosecuted before a disciplinary body.

(3A) If the Director determines that a complaint should not be prosecuted before a disciplinary body, the Director may refer the complaint back to the Commission for action to be taken under section 39 (1) (c)-(g).

…”

16. Section 4 of the Health Care Complaints Act defines “disciplinary body'” as “a person or body (including a professional standards committee) established under [the National Law] that has the power to discipline a health practitioner or to suspend or cancel (by whatever means) the registration of a health practitioner”.

The complaint against the plaintiff

17. By application dated 3 July 2018, the Director of Proceedings referred a complaint against the plaintiff (“the complaint”) to the Tribunal under s 145C(1)(a) of the National Law. The complaint alleged that the plaintiff had engaged in “unsatisfactory professional conduct” within the meaning of s 139(1)(a), (b) and (I) of the National Law, and that the nature of the unsatisfactory professional conduct amounted to “professional misconduct” within the meaning of s 139E of the National Law.

18. The conduct alleged was that the plaintiff inappropriately prescribed Schedule 4 medications to one of his patients between February 2010 and August 2015, and that he failed to maintain appropriate infection control standards over a similar period.

19. On 18 December 2015, the Dental Council suspended the plaintiff from practice following proceedings under s 150 of the National Law which were held on 11, 15 and 18 December 2015, and published written reasons.

20. In January 2016, the plaintiff sought a review of the Dental Council’s decision pursuant to s 150A of the National Law.

21. On 12 February 2016, following a review hearing under s 150A, the Dental Council lifted the plaintiff’s suspension and imposed conditions on his practice of dentistry, which remain in place to date.

22. Between 21 December 2015 and 2 July 2018, the Commission conducted an investigation into the complaint.

23. On 2 July 2018, the Commission commenced proceedings in the Occupational Division of the Tribunal pursuant to s 90B of the Health Care Complaints Act. The Commission sought orders pursuant to ss 149A, 149B, and/or 149C of the National Law.

24. On 14 December 2018, the Senior Member heard the plaintiff’s application that the proceedings be stayed on the basis that they were an abuse of process.

25. On 4 April 2019, the Senior Member dismissed the plaintiff’s application.

26. The plaintiff’s application for judicial review in this Court is on the basis that the Tribunal does not have jurisdiction to hear the disciplinary proceedings pursuant to s 90B of the Health Care Complaints Act because the Tribunal is not a “disciplinary body” under s 4 of the Act.

27. While the plaintiff seeks an extension of time, neither party made submissions on this topic. It may be because of the submissions made before me in Kirby v Health Care t/as Health Care Complaints Commission [2020] NSWSC 1133. If that is the case, I make the same order I did in that case granting an extension of time.

Judicial review generally

28. This Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari, which includes jurisdiction to quash the ultimate determination of a court or tribunal, including the Commission, if that determination has been made on the basis of an error of law on the face of the record. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination: s 69 of the Supreme Court Act 1970 (NSW).

The plaintiff’s submissions

29. The plaintiff submitted that by commencing the disciplinary proceedings before the Tribunal, the Director of Proceedings was acting ultra vires. As such, his actions are invalid and any further conduct in maintaining and prosecuting the disciplinary proceedings should be restrained.

30. It is the plaintiff’s position that the Director of Proceedings lacks the power to prosecute the complaint against him before the Tribunal in accordance with s 90B(1)(a) of the Health Care Complaints Act. Under s 90B(1)(a1) of the Act, where the Commission refers a complaint to the Director of Proceedings, he or she may prosecute the complaint before a disciplinary body if he or she determines that it should be dealt with in that way. The plaintiff noted that the definition of “disciplinary body”, extracted earlier in this judgment, means a person or body established “under” the National Law that has the power to discipline a health practitioner or suspend his or her registration.

31. The plaintiff submitted that the Tribunal is not “established under” the National Law, and is therefore not a “disciplinary body” for the purposes of the Health Care Complaints Act. As such, the key issue for the Court to determine is the proper interpretation of “disciplinary body” and in particular, the meaning of “established under” in s 4 of the Health Care Complaints Act.

32. The plaintiff referred to SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 (“SZTAL”), where the plurality stated at [14]:

“The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.”

33. In Davis v City North Infrastructure Pty Ltd [2012] 2 Qd R 103 (“Davis”), Applegarth J considered whether an entity was “established by government under an Act…” within the meaning of the Right to Information Act 2009 (Qld). At [38] to [39], Applegarth J found that the words:

“[38] …posit a connection between the contents of the Act and the establishment of the entity. They suggest that the Act itself include provision about the establishment of an entity so that it may be said that the entity was established under the Act, in the sense of being established in accordance with the Act’s provisions.

[39] …The Act relied upon by the applicant in its first argument…is not concerned with the establishment of an entity. It contains no provisions that relate to the constitution or establishment of a body – for example, provisions that describe what is to be done to establish an entity. I am not persuaded by the applicant’s first argument.” (emphasis in original)

34. The plaintiff also referred to D.C. Pearce and R.S. Geades, Statutory Interpretation in Australia (LexisNexis, 8^th ed, 2014) at [12.11]:

“The expressions ‘by’ and ‘under’ are usually synonymous. They are generally used in contexts where the meaning is ‘pursuant to’ or ‘by virtue of’.”

35. The plaintiff submitted that the Tribunal is established under the Civil and Administrative Tribunal Act 2013 (NSW) (“the CAT Act”). The CAT Act provides explicitly for the establishment and constitution of the Tribunal, the establishment and constitution of the Occupational Division and the conferral of functions on the Occupational Division. The plaintiff also submitted that it is consistent with the context and purpose of the CAT Act that the Tribunal, including the Occupational Division, is established under the CAT Act.

36. Section 7(1) of the CAT Act reads:

“7 ESTABLISHMENT OF CIVIL AND ADMINISTRATIVE TRIBUNAL

(1) The Civil and Administrative Tribunal of New South Wales…is established by this Act on the establishment day.”

37. Further, by s 16(1)(c) of the CAT Act, the Occupational Division, as one of the divisions of the Tribunal, was established “[o]n the establishment of the Tribunal”. Relevantly, it is the CAT Act which provides for the composition and functions of the Occupational Division under s 17 of the Act. Schedule 5 of the CAT Act is the Division Schedule for the Occupational Division. Clause 4(1) of Sch 5 states that the functions of the Tribunal in relation to the National Law, amongst other legislation, are allocated to the Occupational Division.

38. Division 3 of Pt 4 of Sch 5 provides for the constitution of the Tribunal for proceedings involving the exercise of a Division function in relation to the National Law. In particular, cl 13 of Sch 5 provides:

“(1) The Tribunal, when exercising a Division function in proceedings that are entered in the Health Practitioner list, is to be constituted (and, where necessary, reconstituted) in accordance with any applicable requirements specified by or under the National Law for the constitution of the Tribunal in proceedings of the kind concerned.”

39. Section 165B of the National Law provides for the constitution of the Tribunal in respect of complaints referred to the Tribunal under the National law, or applications or appeals to the Tribunal under the National Law, or inquiries under the National Law, or the exercise of functions under ss 146D or 148G of the National Law. The National Law does not provide for the constitution of the Tribunal in respect of matters brought under the Health Care Complaints Act. In that respect, pursuant to the CAT Act, the List Manager is responsible to give directions concerning the constitution of the Tribunal: see cl 11(3)(b) of Sch 5 of the CAT Act.

39. In these circumstances, the plaintiff submitted that by the ordinary and natural meaning of the text of the CAT Act, the Tribunal is “established” under that Act. The CAT Act is the source of the Tribunal’s existence, and provides for the constitution and function of the Occupational Division of the Tribunal in respect of matters brought under the Health Care Complaints Act.

40. That the Tribunal, including the Occupational Division, is established under the CAT Act is consistent with the stated objects of the CAT Act. Section 3 of the CAT Act provides:

“The objects of this Act are:

(a) to establish an independent Civil and Administrative Tribunal of New South Wales to provide a single point of access for most tribunal services in the State, and

(b) to enable the Tribunal:

…

(iv) to exercise such other functions as are conferred or imposed on it,

and…”

42. The plaintiff also submitted that the Tribunal being “established” under the CAT Act is consistent with the purpose and object of the Act as identified in the second reading speech in the Legislative Assembly on 22 November 2012, during which Attorney General Greg Smith relevantly stated:

“This bill establishes the New South Wales Civil and Administrative Tribunal [NCAT].

The standing committee conducted a thorough inquiry. ...The committee published its final report in March 2012. The report found that ‘stakeholders described the current tribunal system as complex and bewildering’. To reduce this complexity, the committee recommended that the Government pursue the establishment of a new tribunal to consolidate existing tribunals where it is appropriate and promote access to justice. This bill establishes that tribunal.

The Government has identified 23 tribunals or other bodies that will join the New South Wales Civil and Administrative Tribunal. These include some of the larger and better-known tribunals, such as, the Consumer, Trader and Tenancy Tribunal; the Administrative Decisions Tribunal; the Guardianship Tribunal; and various health professional tribunals.

…

But the ad hoc nature of our current tribunal system creates inefficiencies. Currently, many of the separate tribunals maintain their own infrastructure, including separate facilities and separate administrative structures. This results in unnecessary duplication. It also creates much of the confusion referred to by the standing committee in its report. The New South Wales Civil and Administrative Tribunal will reduce those inefficiencies. It will be a one-stop shop for tribunal services. It will be independent, transparent and accountable, and will place customers at the centre of service design.

…

The bill sets up the divisional structure of the New South Wales Civil and Administrative Tribunal. It will have five divisions: Consumer and Commercial, Administrative and Equal Opportunity, Occupational and Regulatory, and Guardianship and Victims Support. To reflect the unique arrangements under the health practitioner national law, a separate health list has been created within the Occupational and Regulatory Division.” (emphasis added)

43. Prior to the establishment of the Tribunal, disciplinary proceedings of health professionals were dealt with by individual tribunals specific to the relevant health profession, referred to above. Under Div 10 of Pt 8 of the National Law as at 31 December 2013, by s 165, tribunals were established for each of the health professions identified. For the dental profession, s 165 established the Dental Council of New South Wales.

44. With the introduction of the CAT Act, each of the tribunals established under s 165 of the National Law was abolished on establishment day. Each current tribunal member of the tribunals established under s 165 of the National Law also ceased to hold office, and was appointed to the new office or position in the Tribunal in accordance with cl 5 of Schedule 4 of the CAT Act. That is, it was the CAT Act that described what was to be done to establish the Tribunal for the purposes of the National Law.

45. Further, with the introduction of the Tribunal under the CAT Act, corresponding amendments were made to the Health Care Complaints Act and the National Law, among others, by the Civil and Administrative Legislation (Appeal and Amendment) Act 2013 No 95. The Act replaced references to tribunals previously established under s 165 of the National Law with references to the Tribunal.

46. The plaintiff also submitted that the Civil and Administration Legislation (Repeal and Amendment) Act replaced Div 10 of Pt 8 of the National Law (including s 165 establishing tribunals for different health professionals) with Div 10 of Pt 8 of the National Law as it now appears. Notably, the heading of Div 10 of Pt 8 prior to the amendment was “Tribunals [NSW]” and Subdiv 1 was titled, “Establishment of Tribunals [NSW]”. In contrast, as a result of the Civil and Administration Legislation (Repeal and Amendment) Act, Div 10 of Pt 8 of the National Law is now titled, “Constitution and proceedings of Tribunal”, and there is no longer any subdivision referring to the “establishment” of any tribunal in the National Law.

47. As such, the plaintiff submitted that it is clear from the context of these legislative amendments that the purpose was for the CAT Act to establish the Tribunal, while the powers and functions of the Tribunal were to be conferred by the subject-matter statutes.

48. The plaintiff referred again to the second reading speech for the CAT Bill, where the Attorney General stated:

“The bill also contains savings and transitional provisions required to transfer matters to the New South Wales Civil and Administrative Tribunal when it opens for business and other administrative provisions relating to the tribunal. However, the bill does not set any detailed provisions relating to practice or procedure. Nor does the bill confer any jurisdiction on the New South Wales Civil and Administrative Tribunal. This is because the Government wants to make sure that detailed requirements, including appeal structures, composition requirements for panels and other procedures are set in consultation with interested stakeholders. These provisions, as well as consequential amendments required to confer jurisdiction on the New South Wales Civil and Administrative Tribunal, will be the subject of further legislation which the Government will introduce next year after a detailed consultation process.” (emphasis added)

49. The plaintiff submitted that those “consequential amendments” referred to the Civil and Administrative Tribunal Amendment Act and the Civil and Administrative Legislation (Repeal and Amendment) Act. As noted above, it was the Civil and Administrative Legislation (Repeal and Amendment) Act that introduced Div 10 of Pt 8 in its current form.

50. Further, in Subdiv 6 of Pt 8, Div 3 of the National Law (which previously stipulated the powers of the various tribunals established under s 165 of the National Law), references to “a Tribunal” were replaced with “The Tribunal”. This conferred the power previously held by the various tribunals established under s 165 of the National Law onto the Tribunal established under the CAT Act. This is consistent with the National Law being a law conferring power on the Tribunal, as distinct from being a law establishing the Tribunal. The plaintiff submitted that this distinction between a statute that establishes a body, as contrasted with a statute that confers functions and powers on that body, is commonplace.

51. As to the Health Care Complaints Act, the plaintiff submitted that its legislative history is consistent with the plaintiff’s position. The expression “disciplinary body” was first introduced in the Health Care Complaints Act by the Health Care Complaints Amendment (Special Commission of Inquiry) Act 2004 (NSW). That legislation introduced recommendations following the report from the Special Commission of Inquiry into Campbelltown and Camden Hospitals which had revealed a number of shortcomings in the previous investigation system of the Commission.

52. As initially introduced under the Health Care Complaints Act, “disciplinary body” was defined as follows:

“disciplinary body means a person or body (including a professional standards committee) established under a health registration Act that has the power to discipline a health practitioner or suspend or cancel (by whatever means) the registration of a health practitioner.”

53. With the introduction of the National Law, by the Health Practitioner Regulation Amendment Act 2010 (NSW), the definition of “disciplinary body” was amended to omit the reference to “a health registration Act” and insert instead, “the Health Practitioner Regulation National Law”. No further amendments have been made to the definition of “disciplinary body”. In particular, no amendments were made to the definition of “disciplinary body” in the Civil and Administrative Legislation (Repeal and Amendment) Act.

54. The plaintiff noted that there are relevant bodies “established under” the National Law that satisfy the meaning of “disciplinary body” for the purposes of s 4 of the Health Care Complaints Act. The plaintiff’s interpretation that the Tribunal is established under the CAT Act and not the National Law is consistent with the purpose, object and function of the regime established by the Health Care Complaints Act and the National Law.

55. These disciplinary bodies which the plaintiff says are “established under” the National Law are as follows:

1. a Council established under s 41B of the National Law, noting that a Council has powers to “discipline a health practitioner or to suspend or cancel (by whatever means) the registration of a health practitioner” under Pt 8, Div 3, Subdiv 7 of the National Law; and

2. a Professional Standards Committee established under s 169 of the National Law, noting that a Professional Standards Committee has powers to “discipline a health practitioner or to suspend or cancel (by whatever means) the registration of a health practitioner” under Pt 8, Div 3, Subdiv 3 of the National Law.

56. The plaintiff further noted that if the Director of Proceedings had determined to prosecute the complaint before the Professional Standards Committee, it would be open to the Professional Standards Committee to make recommendations to the Tribunal under s 146D of the National Law, and in turn, the Tribunal would be empowered to make orders in the terms recommended by the Committee or otherwise.

57. In circumstances where the Tribunal is not a “disciplinary body” for the purposes of the Health Care Complaints Act, the plaintiff submitted that the Director of Proceedings did not have power to prosecute the complaint against Dr Kirby in the Tribunal pursuant to s 90B(1)(a1) of the Health Care Complaints Act.

58. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (“Project Blue Sky”), the majority stated at [91]:

“An act done in breach of a condition regulating the exercise of authority of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment…There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance to the issue.” (footnote omitted)

59. The “necessary inquiry” as stated by the majority in Project Blue Sky at [93] is “whether the statutory purpose of the duty, when considered within the particular statutory scheme of which it forms part, would or would not be advanced by holding an exercise of decision-making power affected by breach of the duty to be invalid.”

60. The plaintiff submitted that the functions of the Director of Proceedings are limited. The office was introduced in 2004 by the Health Legislation Amendment (Complaints) Act 2004 (NSW) as a result of the Special Commission of Inquiry. In the second reading speech on 26 October 2004, Morris Iemma stated:

“Another important protection for practitioners is the creation of a new office of the Director of Proceedings within the HCCC. The director will make independent decisions on whether complaints should be prosecuted. This proposal addresses perceptions of bias within the HCCC. This proposal was suggested by the HCCC during consultation and was circulated for comment to stakeholders, who have given it wide support. To ensure that the co-regulatory nature of the system is preserved, the Director of Proceedings will be required to consult with the registration board about its views before deciding whether or not to institute disciplinary proceedings.”

61. A practitioner who faces the prosecution of a complaint faces significant consequences in the nature of suspension or cancellation of their registration. The plaintiff submitted that the severity of those potential consequences weighs in favour of the conclusion that non-compliance with the statutory provision by the Director of Proceedings invalidates his acts. That is also consistent with the purpose of the Director of Proceedings as identified in the second reading speech, as an independent decision-maker introduced for the protection of practitioners. As such, his decision is invalid and the Director of Proceedings should be restrained from maintaining those proceedings before the Tribunal.

The Commission’s submissions

62. The complaint against the plaintiff has been referred to the Tribunal, which is a body that has the power to discipline the plaintiff or to suspend or cancel his registration.

63. It is the plaintiff’s case that because the Tribunal is “established” under the CAT Act, the Director of Proceedings has acted ultra vires and the defendant should be restrained from taking any further action in relation to the complaint.

64. The Commission’s first submission was that in construing the meaning of “established” in the CAT Act, the Court is to have regard to the Interpretation Act 1987 (NSW). Section 33 of the Interpretation Act reads:

“ln the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.”

65. The Commission submitted that the word “established” in the definition of disciplinary body at s 4 of the Health Care Complaints Act can and should be read interchangeably with the word “constituted”. In Davis at [18], the court refers to the Act under consideration as containing “no provisions that relate to the constitution or establishment of a body...”. In contrast, the National Law in these proceedings specifically constitutes the Tribunal for the purposes of dealing with a complaint referred to it by the Commission.

66. The Commission also referred to the 2019 Macquarie Dictionary definition of “establish”, which reads:

“verb (t)

1. to set up on a firm or permanent basis; institute; found: to establish a government, to establish a business; to establish a university.

2. to settle or install in a position, business, etc.: to establish one’s son in business.

3. to settle (oneself) as if permanently.

4. to cause to be permanently accepted: to establish a custom; to establish a precedent.

5. to show to be valid or well grounded; prove: to establish a fact; to establish a theory; to establish a claim.

6. to appoint or ordain for permanence, as a law; fix unalterably.

7. to set up or bring about: establish order.

8. to make (a church) a national or state institution.

9. Cards to obtain control of (a suit) so that one can win all the subsequent tricks in that suit.

verb (i)   10. (of a business, organisaiton, etc.) to set up a secure and stable operation.

…” (emphasis added)

67. The dictionary definition of “constitute” reads:

“verb (t) (constituted , constituting)

1. (of elements, etc.) to compose; form.

2. to appoint to an office or function; make or create.

3. to set up or found (an institution, etc.).

4. to give legal form to (an assembly, court, etc.).

5. Obsolete to set up or establish (laws, etc.).

6. Obsolete to set or place.” (emphasis added)

68. As such, the Commission submitted that “establish” and “constitute” are synonyms. The fact that the Tribunal at large is “established” under the CAT Act is not inconsistent with a version of the Tribunal being constituted/established as a disciplinary body under the National Law.

69. The Commission submitted that having regard to the underlying purpose of the Health Care Complaints Act and the National Law relating to the management of registered health practitioners, the application of 33 of the Interpretation Act indicates that the legislature intended “established” to be read interchangeably with “constituted” in identifying the Tribunal as a disciplinary body for the purpose of prosecuting a complaint.

70. In the alternative, the Commission submitted that the complaint is being prosecuted before a body that is constituted under the National Law and has the necessary functions and powers to deal with it. By enacting the definition of “disciplinary body” in s 4 of the Health Care Complaints Act, the legislature did not intend to impose as a necessary pre-condition that the disciplinary body be established (as opposed to constituted) under the National Law. As the complaint is before the body empowered to deal with it, there is no basis for the claim that the Commission acted ultra vires, and no basis to restrain the Commission from continuing to perform its statutory functions in prosecuting the complaint.

Resolution

71. The plaintiff’s application for judicial review is on the grounds that the Tribunal is not “established under” the National Law, and therefore cannot be said to be a “disciplinary body” for the purposes of prosecuting a complaint pursuant to s 90B(1) of the Health Care Complaints Act. If so, the Director of Proceedings acted ultra vires in prosecuting the complaint against the plaintiff in the Tribunal.

72. The principles of statutory interpretation are well established and set out in detail earlier in this judgment. As the plurality stated in SZTAL at [14], the starting point is the text of the statute, with regard to its context and purpose. Under s 33 of the Interpretation Act, a construction that promotes the purpose or object underlying the Act is to be preferred.

73. Section 7(1) of the CAT Act unambiguously “establishes” the Tribunal at large. However, it is also the case that the Tribunal, in exercising its function of conducting an inquiry into a complaint made against a health practitioner, is “constituted” under Div 10 of Pt 8 of the National Law. Division 10 of Pt 8 of the National Law, titled “Constitution and Proceedings of the Tribunal”, is set out earlier in this judgment. Relevantly, s 165B(1) specifies how the Tribunal is constituted for the purposes of hearing a complaint against a health practitioner.

74. The words “establish” and “constitute” are functionally synonymous in that they both mean to make and create, or to set up or found. As such, in my view the plain meaning of the definition of “disciplinary body” under s 4 of the Health Care Complaints Act would not seem to exclude the Tribunal as a body established under, in the sense of having been constituted under, the National Law.

75. In its submissions, the Commission also noted that the plaintiff’s interpretation of the legislation would have the effect of depriving parts of the National Law with meaning. For example, s 145C of the National Law governs the referral of complaints to the Tribunal by the Commission for the purposes of inquiring into complaints. Subdiv 6 of Div 3 of Pt 8 sets out the powers that may be exercised by the Tribunal when a complaint has been referred to and admitted or found proven under s 149 of the National Law.

71. The Commission noted that the Tribunal can only inquire into, find proven and exercise disciplinary powers in relation to admitted complaints, or complaints to the Tribunal as a disciplinary body under s 4 of the Health Care Complaints Act. If the Tribunal is not a disciplinary body, then reference to the Tribunal in s 145C of the National Law, and the exercise of powers described in s 149, would have no work to do, as the Commission could not refer complaints to the Tribunal. This would be an absurd result.

72. I agree that in ascertaining the meaning of a statutory provision, this Court is to prefer an interpretation that gives meaning to all words in the Act. In circumstances such as these, where two Acts interrelate, the interpretation of the National Law advanced by the plaintiff would deprive certain provisions of the Health Care Complaints Act of any work to do. The Commission itself is constituted under the Health Care Complaints Act, as recognised at s 138 of the National Law. In my view, the interpretation most consistent with the plain text, context and purpose of the Health Care Complaints Act and Pt 8 of the National Law is that the Tribunal is established, in the sense that it is constituted, under the National Law for the purposes of prosecuting a complaint pursuant to s 90B(1) of the Health Care Complaints Act. As such, in prosecuting the complaint within the Tribunal, the Director of Proceedings did not act ultra vires. The result is that the plaintiff’s application for judicial review fails.

Costs

78. The parties have requested that cost be reserved.

The Court orders that:

1. The amended summons filed 2 May 2019 is dismissed.

2. Costs are reserved.

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Decision last updated: 07 September 2020