O'Sullivan v Pehm - [2010] NSWADT 57

No judgment structure available for this case.

CITATION: O'Sullivan v Pehm [2010] NSWADT 57
This decision has been amended. Please see the end of the decision for a list of the amendments.

DIVISION: Equal Opportunity Division

PARTIES:
APPLICANT
Dr Brendan O’Sullivan
RESPONDENT
Keiran Pehm, First Respondent
Karen Mobbs, Second Respondent
NSW Health Care Complaints Commission, Third Respondent

FILE NUMBER: 081112

HEARING DATES: 24 August 2009

SUBMISSIONS CLOSED: 15 September 2009

DATE OF DECISION:
23 February 2010

BEFORE: Pritchard S - Judicial Member

CATCHWORDS: Application for dismissal s 102

LEGISLATION CITED: Anti-Discrimination Act 1977 (NSW)
Health Care Complaints Act 1993 (NSW)
Administrative Decisions Tribunal Act 1997 (NSW)
Medical Practice Act 1992 (NSW)

CASES CITED: Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16
Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73
Tannock v State of New South Wales [1999] NSWADT 73
Karekar v TAFE Commission of New South Wales [2000] NSWADT 187
Shaikh v Police and Community Youth Clubs NSW Ltd & ors [2001] NSWADT 221
Salama v Qantas Airways Ltd [2002] NSWADT 119
Razaghi v Director-General, NSW Department of Health & anor [2002] NSWADT 4
Harding v Vice Chancellor, University of NSW [2003] NSWADT 74
Lin v American International Assurance Company (Australia) Pty Ltd [2005] NSWADT 59
Razaghi v Director General, Department of Health & anor [2005] NSWADT 202
Han v NSW Department of Health [2006] NSWADT 113
Hay v State of New South Wales (New South Wales Police Service) [2006] NSWADT 13
Hillman v Bankstown District Sports Club Ltd (No 2) [2007] NSWADT 179
Bassili v Star City Pty Ltd [2008] NSWADT 62
Mohamed & ors v State of NSW (NSW Police Force) [2009] NSWADT 51
Hurst v Star City Pty Ltd [2009] NSWADT 65
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
State Electricity Commission of Victoria v Rabel [1998] 1 VR 102
Williams v Spautz (1992) 174 CLR 509
Shaikh v Commissioner, New South Wales Fire Brigades (1996) EOC 92-808 at 78,986
Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20
Bogie v The University of Western Sydney (1990) EOC 92–313
Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44
Re Brendan O’Sullivan v The Medical Practice Act [2006] NSWMT 13 at [8]

REPRESENTATION:
APPLICANT
R Eaves, solicitor
RESPONDENT
J Oakley, barrister

ORDERS: That the complaint be dismissed pursuant to s 102 of the Anti Discrimination Act 1977 (NSW).

REASONS FOR DECISION

1 The applicant is a medical practitioner registered with the New South Wales Medical Board.

2 The third respondent is identified as the NSW Health Care Complaints Commission (“the HCC Commission”). The Commission is a statutory body representing the Crown constituted by s 75 of the Health Care Complaints Act 1993 (NSW) (“the HCC Act”). It is an independent body with responsibility for dealing with complaints under the HCC Act, with particular emphasis on the investigation and prosecution of serious complaints in consultation with relevant registration authorities: see s 3A(2).

3 Mr Pehm, identified as the first respondent, was at all material times the Chief Executive Officer of the HCC Commission. Ms Mobbs, identified as the second respondent, was at all material times the Commission’s Director of Proceedings.

4 On 21 August 2008, the applicant lodged a complaint with the Anti-Discrimination Board (“ADB”) alleging victimisation by the HCC Commission. In his complaint, the applicant alleged that the HCC Commission was victimising him by the decision made on 24 June 2008 by the Conduct Committee of the Medical Board of NSW, on the recommendation of the HCC Commission’s Director of Proceedings, to refer for prosecution in the NSW Medical Tribunal two “old and minor complaints” made against him 2 years and 4 and a half years previously. The applicant alleged that the conduct of the first and second respondents in relation to the referral was in reprisal for two complaints previously made by him to the ADB, against the HCC Commission, as a co-complainant on behalf of his former patient referred to in this decision as MA and a Mrs Lewis. The complaint also raised a potential conflict of interest in either the first or second respondent being involved in any decision in relation to the applicant due to his prior complaints to the ADB.

5 According to the complaint, it was “a sad day indeed when one cannot even ‘make’ a notification or complaint about a public body to the NSW Anti-Discrimination Board without the fear of later retaliation and vilification”.

6 On 28 August 2008, the President of the ADB gave notice pursuant to s 89B of the Anti Discrimination Act 1977 (NSW) (“the AD Act”) that he accepted the complaint of alleged victimisation in the area of employment against the HCC Commission for investigation. The President’s Summary of Complaint notes that the complaint appears to fall within ss 50, 52, and 53 of the AD Act.

7 In subsequent correspondence to the ADB, the applicant raised another allegation against the first respondent, namely that a letter written by the first respondent to the Chief Executive of St Vincent’s Hospital on 28 March 2008 was in reprisal for the applicant’s involvement in the complaints to the ADB by MA and Mrs Lewis.

8 In subsequent correspondence copied to the ADB, the applicant alleged that documents obtained by him from the NSW Medical Board under FOI revealed that the Medical Board had previously been content to have the two previous complaints against him be dealt with by a Board Committee, and not elevated to a full hearing before the NSW Medical Tribunal. The applicant also attached minutes of the meeting of the Conduct Committee of the Medical Board held on 27 May 2008, which record the attendance of the first and second respondents as “Commission staff”, and that no conflicts of interest were declared in relation to any of the business on the agenda. According to the applicant, “some seriously prejudicial decisions” were made in relation to him at the meeting without either the first or second respondent declaring any potential conflict of interest in their dealings with him. The minutes of the meeting of 27 May 2008 record that the Committee noted “a schedule of matters that it [had] previously determined should be resubmitted to the Committee.” In relation to the applicant, the minutes record that the Director of Proceedings informed the committee “that this matter should be ready for consult at the June 2008 meeting”.

9 In a letter to the ADB dated 2 October 2008, the first respondent responded as follows to that part of the complaint concerning the recommendation of the second respondent to refer the two complaints against the applicant to the Medical Tribunal:

The complaint file was received by the Director of Proceedings on 16 May 2008 who after careful consideration recommended that the matter be referred to the Medical Tribunal.

At the time of his recommendation a matter against Dr O’Sullivan had already been referred to a Professional Standards Committee of the NSW Medical Board. Section 179(1)b of the Medical Practice Act 1992 requires that the Professional Standards Committee must refer certain matters to a Tribunal including when the Commission has referred another complaint about the practitioner to the Tribunal.

179(1)(b) A Committee must immediately terminate an inquiry if before or during the inquiry the Committee becomes aware that the Board or the Commission has referred the complaint or another complaint about the practitioner concerned to the Tribunal.

…

179(4) The Tribunal to which the complaint is referred may be the Tribunal as already constituted to deal with another complaint or the Tribunal as constituted to deal with the referred complaint.

The Director of Proceedings recommended that the matter already referred to the Professional Standards Committee be now referred to the Medical Tribunal and heard jointly with the above mentioned complaint.

As required under the Health Care Complaints Act the Director of Proceedings advised the Medical Board of her recommendation on 28 May 2008 and at a meeting of the Board’s Conduct Committee on 24 June 2008 the Board agreed with the Director of Proceedings recommendation. On 30 June 2008 Dr O’Sullivan and his legal representative were advised of the Director of Proceedings determination to prosecute the matters jointly before a Medical Tribunal.

The Commission’s handling of this complaint against Dr O’Sullivan was in line with its statutory obligations under the Health Care Complaints Act and its complaints handling processes that are published both on its website and in its Annual Report. An extract from the Commission’s 2006-07 Annual Report is attached to illustrate the Commission’s adherence to this process in its handling of complaints received against Dr O’Sullivan.

The timelines involved in this complaint are not unusual for matters that require careful and thorough investigation, as was the case in this complaint.”

10 In response to the allegation that the first respondent’s letter to the Chief Executive of St Vincent’s Hospital was a reprisal for the applicant’s association with the complaints made to the ADB by Mrs Lewis and MA, the first respondent stated:

“My letter to the Chief Executive of St Vincent’s Hospital dated 28 March 2008 was in response to a letter Dr O’Sullivan wrote to the hospital, criticising and denigrating a medical practitioner engaged as an expert witness for the Commission. My letter followed concerns expressed to the Commission by its expert witness and attempted to address the incorrect assertions made by Dr O’Sullivan.”

11 On 31 October 2008, the complaint was referred to the Tribunal under s 93C of the AD Act. The Acting Manager, Enquiries & Conclusion advised the Tribunal of his view that the complaint could not be resolved by conciliation. In accordance with s 95(3) of the AD Act, for the purposes of the Administrative Decisions Tribunal Act 1997 (NSW), the referral of a complaint to the Tribunal is taken to be an application for an original decision within the meaning of that Act.

12 On 22 May 2009, the applicant filed Points of Claim in the Tribunal seeking relief against the HCC Commission in respect of a complaint of alleged victimisation in contravention of s 50(1) of the AD Act.

13 On 1 June 2009, the respondents filed an application seeking an order pursuant to s 102 of the AD Act that the applicant’s complaint be dismissed. Alternatively, the respondents sought an order in the following terms:

“Alternatively to order 1 above, that the Tribunal stay these proceedings pending the delivery of judgment in the proceedings brought by the Health Care Complaints Commission against the applicant currently before the Medical Tribunal.”

14 The grounds for order were as follows: 1.The complaint is misconceived and lacking in substance. 2 That the conduct complained of, if proven, would not constitute a breach of the Anti-Discrimination Act 1977 or the Regulations made under it.

15 The hearing of the s 102 application was originally listed for 26 June 2009, by consent, but on the applicant’s application was vacated. The hearing was relisted for 4 August 2009.

16 As at the date of hearing the application, the respondents had not filed any points of defence. On 4 August 2009, written submissions had been filed on their behalf in support of the s 102 application. However, notwithstanding an order made by the Deputy President of the Tribunal on 7 May 2009, they had not filed any affidavit evidence in support of the s 102 application. By letter to the respondents’ solicitor dated 20 August 2009 and filed in the Tribunal on 24 August 2009, the applicant stated that he would oppose the application proceeding in the absence of affidavit evidence being served in support of the respondents’ application. By letter dated 21 August 2009 to the applicant (and subsequently provided to the Tribunal), the respondents confirmed that they did not intend relying on affidavit evidence to support their application, but would rely instead on a number of documents including minutes of meetings of the NSW Medical Board dated 11 March 2008 and 10 June 2008.

17 As at the hearing of the application, the applicant had filed relatively detailed points of claim. As to evidence, the Points of Claim in paragraph 4 referred to “documents annexed to accompanying affidavit”. Under cover of a confidential fax to the Tribunal dated 22 May 2009, the applicant had provided an affidavit annexing various documents to be attached to the Points of Claim. It appears, however, that the fax and affidavit were not served on the respondents, nor otherwise made available to them, (despite a number of written requests to do so) prior to the commencement of the hearing of the application on 24 August 2009. On the morning of the hearing, the applicant filed written submissions addressing the submissions of the respondents. The applicant indicated that he consented to an order in the form of the alternative order. However, at the commencement of the hearing the respondents’ counsel Ms Oakley indicated that her clients no longer sought an alternative order staying the proceedings pending the outcome of proceedings before the Medical Tribunal, and instead only sought relief in the form of dismissal.

18 At the commencement of the hearing, the applicant’s representative Mr Eaves referred to various developments, including the adjournment of the hearing before the Medical Tribunal, originally listed for 5 days beginning 17 August 2009, until 15 to 17 February 2010, and a recent application to the New South Wales Court of Appeal on behalf of the applicant for relief in respect of alleged apprehended bias arising from the inadvertent provision of prejudicial documents to one member of the Tribunal. On behalf of the applicant, a further adjournment of the hearing of the s 102 application was sought pending the outcome of the Court of Appeal proceedings.

19 On behalf of the respondents, it was submitted that the s 102 application could be determined without reference to the outcome of the Court of Appeal proceedings. Having regard to the matters put to me by the parties’ legal representatives, I determined that other than the commonality of parties, the factual and legal matters in the proceedings in the Court of Appeal and the application before me were discrete, and determined to proceed to hear the application.

20 The only documents before the Tribunal were the report of the President in relation to the investigation of the complaint provided under s 94A(2) of the AD Act, attaching a number of documents, and Points of Claim filed on 22 May 2009. In addition, as noted above, both parties provided written submissions.

21 Further, in accordance with directions of the Tribunal, the respondents filed supplementary submissions dated 2 September 2009, and the applicant’s legal representative Mr Eaves filed submissions in response on 15 September 2009. In their supplementary submissions, the respondents confirmed that on 25 August 2009, the Tribunal had provided to them copies of the material referred to in the Points of Claim. The respondents confirmed that they did not dispute the existence or contents of that correspondence.

22 In particular, the respondents accepted that a letter dated 28 May 2008 from the second respondent to Mr Andrew Dix of the NSW Medical Board appeared to be at the heart of the complaint made to the ADB and which had been referred to this Tribunal. The Director of Proceedings’ letter dated 28 May 2008 provided inter alia as follows:

“Following consideration of the complaint made against Dr O’Sullivan by [EL], and taking into account the matters set out in s 90C of the Health Care Complaints Act 1993 (“the act”), I propose to make a determination pursuant to s.90B(1)(a) of the Act that the Commission prosecute a complaint against Dr O’Sullivan.

Whilst the matter is unlikely to result in de-registration or suspension, I am of the view that it is nonetheless appropriate that this matter should be heard before a Medical Tribunal. In reaching this view, I have had regard to the nature of the complaint, which is clinical in nature and which also involves boundary issues that relate to the treatment of a patient who is the partner of Dr O’Sullivan’s current barrister. I note that given the delicate and unusual nature of this part of the complaint, that it would seem appropriate that the matter be dealt with in a jurisdiction that allowed both Dr O’Sullivan and the Commission to be legally represented by independent counsel.

I have also had regard to the other complaints against Dr O’Sullivan, namely the complaint against Dr O’Sullivan that was found proved by a Medical Tribunal in December 2006 and which is still subject to an appeal by Dr O’Sullivan (“the first complaint”). I have also had regard to the current complaint against Dr Sullivan that was brought before a Professional Standards Committee (PSC) and which relates to the patient [MA] (“the second complaint”).

I have also had regard to the history of these two complaints in that they were both initiated before PSC’s. The first complaint was ultimately referred to a Tribunal by the Medical Board. I will deal further with the forum of the second complaint below and my view that it too should be referred to a Medical Tribunal, but note that there have been significant delays with having the second complaint heard by the PSC and that there has already been an appeal to the Medical Tribunal with the prospect of further appeals foreshadowed. In my view, the public interest would best be served by having the complaint by [EL] dealt with by the Medical Tribunal as any legal issues could be more immediately dealt with by the Chairperson or Deputy Chairperson, a District Court Judge. Further, there is an increased level of procedure in the Medical Tribunal which would more easily accommodate any issues that may be raised by the parties in relation to witnesses and summonses.

Second Complaint

I note that there have been numerous delays in having the second complaint heard by a PSC and that an appeal has recently been finalised by the Medical Tribunal. Whilst the matter has been remitted back to the PSC, it seems that Dr O’Sullivan has already foreshadowed further appeals in the matter in the event that certain orders are not made by the PSC. It is noted that the second complaint relates to the patient [MA], whom Dr O’Sullivan has already indicated is to be called as a witness by him. This in itself has the potential to give rise to a number of issues, not least is a concern in relation to [MA’s] mental health and his ongoing involvement in this matter.

Moreover, [MA] has made a number of complaints to the Commission in relation to various parties who the Commission has submitted have no relevance to the complaint but who Dr O’Sullivan wishes to have called as witnesses. It also appears that [MA] has obtained and apparently provided to Dr O’Sullivan a document that purports to be a statutory declaration from another party but which is in fact false. There have been other proceedings lodged by [MA] against the Commission in which Dr O’Sullivan has also had some involvement. In these circumstances, I am of the view that it would be in the public interest for the second complaint to be conducted in a public forum where the conduct of both parties, especially that of the Commission, is totally transparent and open to public scrutiny. It would also allow both parties to be represented by experienced and independent counsel.

23 Under the heading “Reprisals”, the Points of Claim identify a number of actions of the first and second respondents, including the actions of which he complained to the ADB, namely the conduct of the first and second respondents in connection with the recommendation of the HCC Commission’s Director of Proceedings to the NSW Medical Board – which recommendation was accepted - that the MA and EL complaint matters be elevated to hearing before the Medical Tribunal, and the first respondent’s letter of 28 March 2008 to the Chief Executive of St Vincent’s Hospital.

24 In addition, the Points of Claim identify a number of further matters in the nature of “reprisals” which were either not the subject of the original complaint to the ADB (although they predated the lodging of the complaint), or postdated the lodging of the complaint. No application was made pursuant to s 103 of the AD Act to amend the complaint to include anything that was not included in the complaint investigated by the President. Whilst the Tribunal has power to amend the complaint on its own motion, I am not inclined to exercise the power in the circumstances of this case. This is because I have taken the view that each of the so-called reprisals is at best peripheral to the substance of the applicant’s complaint to the ADB, namely the conduct of the first and second respondents in relation to the recommendation to the Conduct Committee of the NSW Medical Board on 10 June 2008 to prosecute the complaints made against him in 2004 in relation to MA and EL in the Medical Tribunal (and to a lesser extent the first respondent’s letter to the Acting Director of St Vincent’s Hospital dated 28 March 2008).

25 Notwithstanding the somewhat incomplete nature of the evidence filed on behalf of the parties, there was, for the purpose of determining the s 102 application, no real dispute between the parties in relation to the following factual matters.

26 On or about 2 April 2004, a Dr Horvath made a complaint to the HCC Commission in respect of a former patient of the applicant. The former patient is referred to in this decision as “MA”. It was not in dispute (for the purpose of the application) that MA suffers from chronic schizophrenia.

27 On or about 4 September 2006, another former patient, referred to in this decision as “EL”, made a complaint to the HCC Commission against the applicant in relation to his prescription to her of lithium tablets. On its receipt, the complaint was assessed in consultation with the Medical Board. On or about 23 November 2006, a decision was made to investigate the complaint.

28 On or about 13 February 2007, the Conduct Committee of the NSW Medical Board determined that the complaint against the applicant in respect of the former patient “MA” proceed before a Professional Standards Committee.

29 On or about 24 September 2007, the applicant lodged a disability discrimination complaint with the ADB on behalf of his patient MA concerning the manner in which the HCC Commission had dealt with a complaint by MA in respect of Dr Horvath.

30 On or about 24 September 2007, the applicant also lodged a disability discrimination complaint with the ADB on behalf of a Mrs Marilyn Lewis concerning the manner in which the HCC Commission had dealt with Mrs Lewis’ complaint against a Dr Andrews in relation to the death of her son.

31 On or about 11 March 2008, the Conduct Committee of the NSW Medical Board determined that the complaint against the applicant in respect of the former patient “EL” proceed before a Professional Standards Committee. The Conduct Committee decided as follows:

2. The Committee considered that on the basis of the information before it a Professional Standards Committee is the appropriate forum for hearing the matter.

3. In light of the current complaint [by MA] before a Professional Standards Committee, the Director of Proceedings be requested to consider joining this matter to the current complaint.”

32 On 17 March 2008, the President of the ADB advised MA that his complaint was declined as lacking in substance. On 3 June 2008, the Deputy President of this Tribunal, Magistrate Hennessy refused an application pursuant to s 96 of the AD Act for leave to proceed: ADT file number 081033.

33 On 7 April 2008, the President of the ADB advised Mrs Lewis that her complaint was declined as lacking in substance. On 24 December 2008, the Deputy President of this Tribunal, Magistrate Hennessy refused an application pursuant to s 96 of the AD Act for leave to proceed: Lewis v State of New South Wales Health Care Complaints Commission [2008] NSWADT 342.

34 On 15 May 2008, the Commission, after consultation with the Medical Board, decided to refer the EL complaint to the Director of Proceedings to determine whether or not to prosecute the matter before a disciplinary hearing.

35 On 16 May 2008, the Director of Proceedings recommended that the EL complaint be referred to the Medical Tribunal.

36 On or about 24 June 2008, the Conduct Committee of the NSW Medical Board decided as follows:

-Prosecute the complaint by [EL] before the medical tribunal (file no 06/01832) and

-That the above complaints be joined.”

37 On 30 June 2008, the third respondent, as Director of Proceedings, wrote to the applicant advising him that following consultation with the Medical Board and taking into account the matters set out in s 90C(1) of the HCC Act, she had determined pursuant to s 90B(1)(a) of the Act that the Commission would prosecute a complaint against him before the Medical Tribunal.

38 As noted previously, on 15 August 2008, the applicant lodged a complaint with the ADB alleging that the decision of the Conduct Committee of the NSW Medical Board on 10 June 2008 to prosecute the complaints made against him in 2004 in relation to MA and EL had been made in reprisal for the two complaints made by him to the ADB on behalf of MA and Mrs Lewis.

39 Part 2 of the HCC Act is concerned with the making of complaints. Division 1 is headed “The right to complain”. Pursuant to s 7(1)(a), a complaint may be made under the Act concerning the professional conduct of a health practitioner. Pursuant to s 8, a complaint may be made by any person.

40 Division 2 is headed “Liasing with registration authorities”. Pursuant to s 10(1), if a complaint made under the Act is made against or directly involves a health practitioner who is or has been registered under a health registration Act, the Commission must notify the appropriate registration authority of the complaint. In the case of medical practitioners in NSW, the relevant body is the Medical Board. Further, pursuant to s 12(1), before determining, as a result of the assessment of a complaint, whether to investigate a complaint, to refer the complaint for conciliation, to deal with the complaint under Division 9 or to discontinue dealing with the complaint, the HCC Commission must consult with the appropriate registration authority (relevantly the Medical Board). Section 13(1) provides that if either the Commission or the appropriate registration authority is of the opinion that a complaint (or any part of a complaint) should be investigated, it must be investigated.

41 Divisions 4 and 5 contain provisions relating to the assessment of complaints, and the investigation of complaints. In investigating a complaint, the Commission may obtain a report from a sufficiently qualified or experienced expert on the matter the subject of the complaint: s 30(1).

42 Division 6 provides for the outcomes of investigations into health practitioners. Section 39(1)provides as follows:

43 Pursuant to s 39(3), the Commission is required to consult with the appropriate registration authority before deciding what action to take. If at the end of the investigation of a complaint against a health practitioner, the Commission proposes to do any of the things referred to in section 39 (1) (a), (c), (d) or (g), it must first inform the health practitioner of the substance of the grounds for its proposed action and give the health practitioner an opportunity to make submissions.

44 Part 6A of the HCC Act deals with the Director of Proceedings. Section 90B provides, in part, as follows in relation to the functions of the Director of Proceedings:

…

(3) The Director of Proceedings:

(a) may at any time consult with a registration authority in relation to the exercise of any of the Director’s functions, and
(b) must consult with the appropriate registration authority (if any) before determining whether or not a complaint should be prosecuted before a disciplinary body.

45 Section 90C(1) identifies the following criteria relevant to determinations of the Director of Proceedings:

46 Section 90C(1A) provides as follows in relation to the concurrent prosecution of complaints:

(1A) When determining whether a complaint should be prosecuted by the Commission before a disciplinary body, the Director of Proceedings is to consider making a determination with respect to any associated complaint that has been referred to the Director of Proceedings (other than an associated complaint that is a complaint that has been discontinued or terminated and not reopened) so that the complaints are prosecuted concurrently.

Relevant provisions of the Medical Practice Act 1992

47 Parts 10 and 11 of the Medical Practice Act 1992 (NSW) contain provisions relating to the New South Wales Medical Board and the Medical Tribunal.

48 Part 12 contains provisions in relation to Professional Standards Committees. Section 175(1) provides that a Committee is to hold an inquiry into any complaint referred to it. Section 179 provides as follows in relation to the referral of certain matters by a Committee to the Medical Tribunal:

49 Section 102 of the AD Act provides that “[t]he Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under s 92 (1) (a) (i) or (ii) or (b).”

50 Section 92(1) of the AD Act provides relevantly as follows:

“(1) If at any stage of the President’s investigation of a complaint:

51 The power to dismiss a complaint summarily under s 102 of the AD Act (formerly, s 111(1)) has been considered extensively by this Tribunal. The Tribunal has adopted a careful approach to the exercise of the power, emphasising that it should be exercised with exceptional caution and only if the circumstances clearly warrant such action: see Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16; Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73; Tannock v State of New South Wales [1999] NSWADT 73; Karekar v TAFE Commission of New South Wales [2000] NSWADT 187; Shaikh v Police and Community Youth Clubs NSW Ltd & ors [2001] NSWADT 221; Salama v Qantas Airways Ltd [2002] NSWADT 119; Razaghi v Director-General, NSW Department of Health & anor [2002] NSWADT 4; Harding v Vice Chancellor, University of NSW [2003] NSWADT 74; Lin v American International Assurance Company (Australia) Pty Ltd [2005] NSWADT 59; Razaghi v Director General, Department of Health & anor [2005] NSWADT 202; Han v NSW Department of Health [2006] NSWADT 113; Hay v State of New South Wales (New South Wales Police Service) [2006] NSWADT 13; Hillman v Bankstown District Sports Club Ltd (No 2) [2007] NSWADT 179; Bassili v Star City Pty Ltd [2008] NSWADT 62; Mohamed & ors v State of NSW (NSW Police Force) [2009] NSWADT 51; Hurst v Star City Pty Ltd [2009] NSWADT 65.

52 The Tribunal’s approach is consistent with the principles applicable to the inherent jurisdiction summarily to terminate an action articulated by the High Court in the well-known case of General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

53 Moreover, as the Tribunal commented in Karekar v TAFE Commission of New South Wales [2000] NSWADT 187 at [36], the need for caution is even more apparent in cases such as this where the application to have the complaint dismissed is made prior to the adducing of the applicant’s evidence at the substantive hearing.

54 In relation to whether the complaint would be characterised as "frivolous” or “vexatious”, the following observations of Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109 are relevant:

“`frivolous' and `vexatious' are terms which have been known to the courts for many years, forming the primary basis for dismissal in the inherent jurisdiction of the courts and which now may be taken as indicative of `abuse of process' .........."

55 The expression “abuse of process” received detailed consideration by the High Court in Williams v Spautz (1992) 174 CLR 509.

56 In relation to whether a complaint would be dismissed as "misconceived" or "lacking in substance", there arises an issue as to timing. As Ronalds (Discrimination Law and Practice at 207-208) has observed, the timing question should be approached by undertaking "a balancing act of permitting a complainant to pursue their case to the end and achieve a judgment ...... weighted against the requirement that a respondent should not be forced to meet a case which is not sufficiently substantial".

57 Further, in relation to whether a complaint would be dismissed as "misconceived" or "lacking in substance", as Ormiston JA observed in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102, the expressions have not been used in a way which would draw them under the rubric of “abuse of process”. Rather, the expression "misconceived" is commonly used to mean "a misunderstanding of legal principle", and the expression "lacking in substance" to mean "an untenable proposition of law or fact". In Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73 at [34] the Tribunal observed that these were helpful descriptions “which will assist the Tribunal to determine whether the complaint is "misconceived" or "lacking in substance"”.

58 In determining whether the complaint should be dismissed, in whole or in part, the evidence provided by the applicant will be taken at its highest: see Prakash v Bobb Borg Enterprises Pty Ltd at [35]; Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT at [21]);; Hurst v Star City Pty Ltd [2009] NSWADT 65.

59 In other words, for the purposes of this exercise, it is appropriate that I accept everything which the applicant has put in evidence as true and then determine whether he could possibly succeed in his complaint of victimisation. If I conclude that the applicant could not succeed, it is likely, in the absence of abuse of process, he has proceeded this far because he has misunderstood legal principle or has been advancing an untenable proposition of law or fact.

60 In order to determine whether the applicant could possibly succeed in his complaint of victimisation, it is necessary to turn to the substantive provisions of the AD Act. Section 50 Act provides relevantly as follows:

“(1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has:

61 Four elements must be satisfied before a complaint of victimisation contrary to s 50 can be substantiated:

detriment

on the ground that

Shaikh v Commissioner, New South Wales Fire Brigades

Nicholls and Nicholls v Director General, Department of Education and Training (No 2)

62 Whist the respondents do not accept that the applicant did any of the things specified in paragraphs (a) to (c), they did not dispute for the purpose of the application that assisting MA and Mrs Lewis to make complaints to the ADB against the HCC Commission could within s 50(1)(d).

Subjecting the complainant to a relevant detriment

63 In relation to detriment, the Points of Claim do not in terms identify any detriment to which the applicant says he has been subject. In this connection, the respondents submitted that it is “not entirely clear what detriment the applicant alleges he has been subjected to”.

64 I consider it to be tolerably clear that the detriment upon which the applicant relies are the so-called “reprisals” identified in his complaint to the ADB, namely the conduct of the first and second respondents in recommending to the Conduct Committee of the Medical Board the prosecution of the two complaints previously made against him in the Medical Tribunal (the alleged referral detriment), and the conduct of the first respondent in writing to the Acting Director of St Vincent’s Hospital (the alleged letter to St Vincent’s detriment).

65 Being subjected to a “detriment” within the meaning of s 50(1) means that the complainant has been placed under a disadvantage as to a matter of substance, as distinct from a trivial matter: Bogie v The University of Western Sydney (1990) EOC 92–313 at 78,146. In Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 the former Equal Opportunity Tribunal at 78,986 observed that the term “detriment” means "loss, damage or injury" to the applicant. In Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 the Tribunal commented at [41]:

“The detriment suffered by the complainant must be real and not trivial. Whether something constitutes a detriment must be determined objectively and not subjectively. In other words, it is not sufficient for the complainant to allege that he has suffered some consequence at the hands of the respondent which he characterises as a detriment; the loss, damage or injury suffered by the complainant must be something which a reasonable person would consider to be a detriment.”

66 It arises to consider whether the applicant could possibly succeed in establishing that he has been subjected to a relevant detriment.

67 It arises first to consider the conduct of the second respondent, the Director of Proceedings, in recommending prosecution of the two complaints against the applicant in the Medical Tribunal.

68 In relation to the assessment and investigation, and recommendation of prosecution of the complaints the following observations can be made.

69 First, the applicant did not identify, nor was I able to identify any relevant departure by either the first or second respondent from the statutory framework for the handling of complaints made against medical practitioners under the HCCC Act. Once the complaints were lodged, the HCC Commission, its Commissioner, the first respondent, and its Director of Proceedings, the second respondent, were subject to statutory obligations in respect of the handling of each complaint. The Commission’s consultation with the applicant’s registration body, the Medical Board, appears to have been in accordance with the requirements of the HCC Act. Pursuant to s 39(3), the Commission was required to consult with the Medical Board authority before deciding what action to take. The Director of Proceedings’ conduct appears to have been in accordance with Part 6A of the Act, in particular the assignment to her of the function of determining whether the complaint should be prosecuted before a disciplinary body (s 90B(1)(a)), the requirement to consult with the appropriate registration authority before determining whether or not the complaint should be prosecuted before a disciplinary body (s 90B(3)), and the identification of criteria relevant to a determination whether or not a complaint should be prosecuted before a disciplinary body (s 90C(1)). Further, the referral by the Professional Standards Committee of the Medical Board of the two complaints concerning the applicant to the Tribunal appears to have been in accordance with s 179 of the Medical Practice Act.

70 In particular, it is of significance that at its meeting of 24 June 2008 the Conduct Committee of the Medical Board agreed with the Director of Proceedings’ recommendation.

71 Second, the second respondent’s letter dated 28 May 2008, which is in large part reproduced above and sets out her reasons for recommending the prosecution of the two complaints before the Tribunal, makes clear that she took into account the interests of all relevant parties, including the applicant before making her recommendation. There were clearly benefits to the applicant in having the complaints heard in the Tribunal, including:

(a) the appropriateness of the Tribunal dealing with the EL complaint given the unusual and delicate nature of part of the complaint being clinical in nature, and involving boundary issues relating to the treatment of a patient the sister of the applicant’s then barrister;

(b) in relation to the EL complaint, the capacity for the applicant (as well as the HCC Commission) to be represented by independent counsel in the Tribunal;

(c) the capacity of the Tribunal to more immediately deal with the legal issues raised in respect of the EL complaint (the Chairperson or Deputy Chairperson of the Tribunal being a District Court judge);

(d) an increased level of procedure in the Tribunal capable of more readily accommodating any issues in relation to witnesses and summonses;

(e) in the case of the MA complaint, a procedural history involving an appeal from a professional standards committee to the Medical Tribunal, a finalisation of that appeal by the Tribunal, its remitter to the professional standards committee and further appeals foreshadowed by the applicant in the event that the committee does not make certain orders;

(f) the interest in having the conduct of both parties in respect of the MA complaint, and ‘ especially that of the Commission … totally transparent and open to public scrutiny ”, in circumstances in which inter alia the applicant had indicated MA was to be called as a witness, and MA had made a number of other complaints to the Commission in respect of persons the applicant wished to have called as witnesses; and

72 Accordingly, I have concluded that the referral of the two complaints against the application to the Tribunal for prosecution cannot be characterised as a relevant “detriment”. There are in my view appreciable benefits to him in the hearing of the complaints before the Tribunal. This conclusion is fortified by the fact that the applicant has himself on at least one previous occasion applied to the Conduct Committee of the Medical Board to have a complaint against him dealt with by the Tribunal rather than the Medical Board: see In Re Brendan O’Sullivan v The Medical Practice Act [2006] NSWMT 13 at [8] (in which two of the three parts of the complaint were found to be proved).

73 As the Tribunal observed in Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [41], whether something constitutes a detriment must be determined objectively and not subjectively. It is not sufficient for the complainant to allege that he has suffered some consequence at the hands of the respondent which he characterises as a detriment; the loss, damage or injury suffered by the complainant must be something which a reasonable person would consider to be a detriment. I do not consider having regard to the Commission’s statutory obligations in relation to complaints against medical practitioners, and the appreciable benefits to the applicant in having the complaints dealt with in the Tribunal in the circumstances identified above, that determined objectively a reasonable person would consider that the applicant has suffered a relevant detriment.

74 The involvement of the first and second respondents in the referral of the two complaints in carrying out their statutory duties, and in particular the timing thereof, was no doubt such as to raise suspicion in the mind of the applicant that the referral was in retaliation for his previous complaints to the ADB against the HCC Commission. However, in order to make out a complaint of victimisation against any of the respondents, there would need to be some evidence capable of establishing that any such referral amounted to a relevant “detriment” within the meaning of s 50 of the AD Act. For the reasons given, there is no evidence before me, taken at its highest, which is capable of establishing that the referral to the Medical Tribunal could be characterised as a relevant detriment.

The alleged letter to St Vincent’s detriment

75 The second alleged detriment identified in the complaint is the letter written by the first respondent dated 28 March 2008 to the Chief Executive of St Vincent’s Hospital. The applicant’s email to the ADB dated 7 September 2008 alleged that the letter was sent “to the Executive of St Vincent’s Hospital – after it turned out that I was right in my concerns over an apparent misuse of the Hospital’s letterhead by an HCCC peer reporter”. According to the Points of Claim, the “letter was designed to damage the applicant’s reputation and … also breached the applicant’s privacy”.

76 Although referred to in the Points of Claim, no copy of the letter was in evidence before me. In order to ensure procedural fairness to the applicant, I requested the Registry to obtain a copy of the letter.
77 I have examined the first respondent’s letter of 28 March 2008. It is just over one page in length. It is clear on its face that it was in response to a letter by the applicant to the hospital in relation to a medical practitioner engaged by the Commission to provide an expert opinion on issues of professional misconduct under s 30 of the HCC Act. In particular, the letter seeks to address criticism by the applicant of the practitioner’s clinical skills and judgment, and of the money earned by the practitioner for the provision of expert reports to the Commission. The expert report had been provided on hospital letterhead. It is also clear on its face that a copy of the first respondent’s letter was provided to the applicant.

78 There was also in evidence a copy of a letter headed “Private and Confidential” dated 5 December 2008 from the first respondent to the applicant on behalf of the Commission apologising for any breach of the applicant’s privacy committed in the letter of 28 March 2008. In their supplementary submissions dated 2 September 2009, the respondents confirmed that they did not dispute the contents of the letter of apology.

79 I do not consider that determined objectively a reasonable person would conclude that the applicant has suffered a relevant detriment in the sense of something real and not trivial. The gravamen of his complaint is the existence of a single letter to the Chief Executive of a hospital at which the applicant did not practice. The letter was in response to a letter critical of the clinical skills and judgment of a practitioner engaged by the Commission to provide an expert opinion, and of money earned by him. The applicant has received an apology for any breach of his privacy.

Conclusions

80 Having considered the applicant’s evidence at its highest, and mindful that the power to dismiss a complaint summarily under s 102 of the AD Act should be exercised with exceptional caution and only if the circumstances clearly warrant such action, I am satisfied that the complaint is both "misconceived" and "lacking in substance". This is because I do not consider that either the alleged referral detriment or the alleged letter to St Vincent’s detriment is capable of being properly characterised as a relevant “detriment” within s 50(1) of the AD Act.

81 To adopt the language of Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 109 the complaint involves "a misunderstanding of legal principle" and "an untenable proposition of law or fact"; see also Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73 at [47].

82 I order that the complaint be dismissed.

25/03/2010 - Typographical errors errors corrected as per s87(1) of the Administrative Decisions Tribunal Act 1997 - Paragraph(s) 1, 9, 14, 16, 17, 19, 20, 22, 23, 36, 79

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Citations

O'Sullivan v Pehm [2010] NSWADT 57

Most Recent Citation

O'Sullivan v NSW Medical Board [2010] NSWADT 75

Cases Citing This Decision

7

QY & QZ v Sydney South West Area Health Service (EOD) [2010] NSWADTAP 48

Obieta v Australian College of Professionals Pty Ltd [2012] NSWADT 208

Ali on behalf of ALJ and ALK v NSW Department of Education and Communities [2012] NSWADT 174

Cases Cited

21

Statutory Material Cited

4

Lewis v State of New South Wales (Health Care Complaints Commission) [2008] NSWADT 342

Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16

Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73

CITATION:	O'Sullivan v Pehm [2010] NSWADT 57 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Dr Brendan O’Sullivan RESPONDENT Keiran Pehm, First Respondent Karen Mobbs, Second Respondent NSW Health Care Complaints Commission, Third Respondent
FILE NUMBER:	081112
HEARING DATES:	24 August 2009
SUBMISSIONS CLOSED:	15 September 2009
DATE OF DECISION:	23 February 2010
BEFORE:	Pritchard S - Judicial Member
CATCHWORDS:	Application for dismissal s 102
LEGISLATION CITED:	Anti-Discrimination Act 1977 (NSW) Health Care Complaints Act 1993 (NSW) Administrative Decisions Tribunal Act 1997 (NSW) Medical Practice Act 1992 (NSW)
CASES CITED:	Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16 Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73 Tannock v State of New South Wales [1999] NSWADT 73 Karekar v TAFE Commission of New South Wales [2000] NSWADT 187 Shaikh v Police and Community Youth Clubs NSW Ltd & ors [2001] NSWADT 221 Salama v Qantas Airways Ltd [2002] NSWADT 119 Razaghi v Director-General, NSW Department of Health & anor [2002] NSWADT 4 Harding v Vice Chancellor, University of NSW [2003] NSWADT 74 Lin v American International Assurance Company (Australia) Pty Ltd [2005] NSWADT 59 Razaghi v Director General, Department of Health & anor [2005] NSWADT 202 Han v NSW Department of Health [2006] NSWADT 113 Hay v State of New South Wales (New South Wales Police Service) [2006] NSWADT 13 Hillman v Bankstown District Sports Club Ltd (No 2) [2007] NSWADT 179 Bassili v Star City Pty Ltd [2008] NSWADT 62 Mohamed & ors v State of NSW (NSW Police Force) [2009] NSWADT 51 Hurst v Star City Pty Ltd [2009] NSWADT 65 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 Williams v Spautz (1992) 174 CLR 509 Shaikh v Commissioner, New South Wales Fire Brigades (1996) EOC 92-808 at 78,986 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Bogie v The University of Western Sydney (1990) EOC 92–313 Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 Re Brendan O’Sullivan v The Medical Practice Act [2006] NSWMT 13 at [8]
REPRESENTATION:	APPLICANT R Eaves, solicitor RESPONDENT J Oakley, barrister
ORDERS:	That the complaint be dismissed pursuant to s 102 of the Anti Discrimination Act 1977 (NSW).