Quach v New South Wales Health Care Complaints Commission

[2016] NSWCA 10

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Quach v New South Wales Health Care Complaints Commission [2016] NSWCA 10

Hearing dates:

3 February 2016

Decision date:

10 February 2016

Before:

McColl JA at [1];
Meagher JA at [2];
Leeming JA at [3]

Decision:

(1) Reject the Practitioner’s tender of the TGA document dated 27 August 2009 concerning Gardasil and the transcripts of proceedings before NCAT prepared by the Practitioner.

 

(2) Amended summons filed 12 May 2015 dismissed.

 

(3) Paragraph 2 of the notice of motion filed 21 October 2015 dismissed.

 

(4) Paragraph 3 of the notice of motion filed 21 October 2015 stood over to a date to be advised for directions before the Registrar.

 

(5) Notice of motion filed 8 December 2015 dismissed.

 

(6) Notice of motion filed 28 January 2016 stood over to a date to be advised for directions before the Registrar.

 (7) The Practitioner is to pay the Commission’s costs of the amended summons filed 12 May 2015, the notice of motion filed 8 December 2015 and paragraph 2 of the notice of motion filed 21 October 2015.

Catchwords:

ADMINISTRATIVE LAW – judicial review for jurisdictional error – decision of New South Wales Civil and Administrative Tribunal (NCAT) to deregister medical practitioner – whether NCAT properly constituted by appointment of acting judge of District Court as a member – whether judicial member had conflict of interest – whether denial of procedural fairness by NCAT’s questioning of witnesses or accepting opinion evidence of general practitioner – whether apprehended bias disclosed by various procedural rulings of NCAT – significance of practitioner failing to exercise right of appeal – no ground of review made out – proceedings dismissed

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 4, 8, 9, 10, 15; Sch 5, Pt 6, cl 29
District Court Act 1973 (NSW), s 18
Supreme Court Act 1970 (NSW), ss 48, 69

Cases Cited:

Ebner v Official Trustee [2000] HCA 63; 205 CLR 337
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478
Halverson v Dobler Halverson by his tutor v Dobler [2006] NSWSC 1307
Health Care Complaints Commission v Quach [2015] NSWCATOD 2
Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Quach v Health Care Complaints Commission (No 2) [2015] NSWCA 311
Quach v Health Care Complaints Commission [2015] NSWCA 187
Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63

Category:

Principal judgment

Parties:

Michael Van Thanh Quach (Applicant)
New South Wales Health Care Complaints Commission (First Respondent)
New South Wales Civil and Administrative Tribunal (Second Respondent)
Attorney-General of New South Wales (Third Respondent)

Representation:

Counsel:
Applicant in person
Ms K H Richardson (First Respondent)
Mr B K Lim (Third Respondent)
Submitting appearance by Second Respondent

  Solicitors:
Crown Solicitor (First Respondent)
Crown Solicitor (Third Respondent)

File Number(s):

2015/158685

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

New South Wales Civil and Administrative Tribunal

Jurisdiction:

Occupational Division

Citation:

[2015] NSWCATOD 2; [2015] NSWCATOD 32

Date of Decision:

5 February 2015; 21 April 2015

Before:

F Marks ADCJ, Principal Member; Dr M Giuffrida, Professional Member; Dr E Kertesz, Professional Member; C Berglund, Lay Member

File Number(s):

1420086,1420065

Judgment

1. McCOLL JA: I agree with Leeming JA’s reasons and the orders his Honour proposes.

2. MEAGHER JA: I agree with Leeming JA.

3. LEEMING JA: The substantive matter heard by this Court, in its supervisory jurisdiction regulated by s 69 of the Supreme Court Act 1970 (NSW), was the amended summons dated 12 May 2015 filed by Mr Quach (the Practitioner). That summons is directed to identifying jurisdictional error in two decisions of the New South Wales Civil and Administrative Tribunal (NCAT) made on 5 February 2015 and 21 April 2015: Health Care Complaints Commission v Quach [2015] NSWCATOD 2 and Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32. The first decision resulted in findings of unsatisfactory professional conduct and professional misconduct being made against the Practitioner. The second resulted in orders cancelling his registration as a medical practitioner, preventing his applying to review the cancellation of his registration for a period of seven years, and prohibiting him from providing any health service on a public, private or volunteer basis. In what follows, I will refer those decisions, respectively, as the “Stage One” and “Stage Two” decisions.

4. Those decisions followed proceedings, initially commenced in the Medical Tribunal, brought by the Health Care Complaints Commission (the Commission), involving complaints relating to misdiagnosis, inappropriate treatment, excessive charging, and an absence of sufficient mental capacity resulting in the Practitioner not being competent to practise. The Stage One hearing took ten days, during which the Practitioner was represented by counsel. The Stage One decision is extremely long (it is 423 paragraphs). For the purposes of this judgment, it will be necessary only to make reference to certain comparatively minor aspects of it, and I make no attempt otherwise to summarise the misconduct found by NCAT.

Procedural history and interlocutory motions

5. Although initially filed in the Common Law Division of the Supreme Court, the proceeding was transferred to this Court because NCAT was presided over by an Acting District Court Judge: see Supreme Court Act, s 48(2) and the definition of “specified tribunal” in s 48(1)(a)(vii). The hearing of that amended summons was set down last year, with an estimate of one day. Full written submissions were served by the Practitioner in September, by the active respondents in October and by the Practitioner in reply in November 2015.

6. The summons joined NCAT (which, appropriately, filed a submitting appearance) and the Commission. The Attorney-General intervened, and was joined as the third respondent, on a basis limited to dealing with those of the Practitioner’s challenges concerning the participation in NCAT of the Honourable Acting Judge Marks.

7. There are also several notices of motion filed by the Practitioner which were returnable at the hearing on 3 February 2016. It is convenient to deal with them at the outset. All relate to matters arising after the matter had been made ready for hearing.

8. First, before the Court was paragraph two of a notice of motion filed by the Practitioner on 21 October 2015 which seeks:

“Reinstatement of the title of proceedings back to Quach v New South Wales Civil and Administrative Tribunal, with

(a) respondent 1, as New South Wales Civil and Administrative Tribunal

(b) respondent 2, New South Wales Health Care Complaints Commission

pursuant to Civil Procedure Act 2005 s 64.”

9. Both the Practitioner’s original summons and amended summons name NCAT as the first defendant and the Commission as the second defendant. At some stage an order was made reversing the order of those parties. That order reflected a practice (which is far from invariable) that where one of two defendants has filed a submitting appearance, the submitting defendant is the second defendant, and the active defendant is the first defendant.

10. The Practitioner contends that because his real complaint is against the participation of Judge Marks in NCAT, it should be the first respondent. In his words:

“The real questions raised in this proceeding are aim squarely at Principal Member Marks” [sic].

11. The Practitioner is correct to state that the principal matters raised by him are directed to Judge Marks, but his motion is entirely misconceived. Whatever the order of respondents be, the issues raised by the Practitioner will be determined. The Practitioner could not point to any consequence which the order of parties in this litigation might have. There is no consequence save for the short title of this judgment. I propose that that paragraph of the notice of motion be dismissed.

12. Secondly, the Practitioner filed a notice of motion on 8 December 2015 which challenged a decision made by this Court’s Registrar on 7 December 2015. The Practitioner contended that the Registrar had purported to review a decision of another Registrar made on 2 November 2015, that this was outside his power, and that the orders made by him should be set aside.

13. By paragraph 3 of his notice of motion filed 21 October 2015, the Practitioner had applied for judicial review of a decision of the Medical Board dated 23 September 1999 (that is, more than 16 years ago). The application was unaccompanied by evidence directed to why the requisite extension of time should be granted. On 2 November 2015, upon the application of the Attorney, the Registrar directed the Practitioner to apply for an extension of time and to supply any evidence supporting the delay by 30 November 2015. On that date, the Practitioner filed an amended notice of motion which made a series of attacks upon not only the decision of the Medical Board dated 23 September 1999, but also a report dated 4 February 1999 and the conduct of the Commission and its barrister in relation to his proceedings in this Court. No evidence was filed relating to the basis on which an extension of time was sought.

14. It was in those circumstances that the matter came before a (different) Registrar on 7 December 2015. After hearing from the parties, the Registrar said, “as the amended motion is presently framed before the Court they are not orders that this Court can make and I don’t intend to leave it on the file. So the only orders I am making today is that leave to amend the motion is refused and the document is rejected pursuant to [UCPR 4.10(4)].”

15. It is perfectly plain that the Registrar on 7 December 2015 was not purporting to review the directions made by a different Registrar on 2 November 2015. Instead, he was dealing with a situation where the Practitioner had not complied with a direction to supply evidence and had purported to expand, by way of amended notice of motion, what had been before the Registrar on 2 November 2015, including making serious claims against, and seeking orders against, non-parties. No error has been shown by the Practitioner in the course taken by the Registrar on 7 December 2015. I propose that the notice of motion dated 8 December 2015 be dismissed, with costs.

16. Thirdly and most recently, on 28 January 2016 (in the Court’s vacation), the Practitioner filed a further notice of motion and supporting affidavit. In a manner not apparent on the face of the materials before this Court, that motion was made returnable at 10:15am on 3 February 2016. That motion sought (a) orders directed against Ms Karen Mobbs, related to her exercise of functions of the Commission and (b) judicial review of a decision of the Professional Standards Committee dated 31 October 2011. By correspondence sent to the Practitioner on the day prior to the hearing, the Commission stated that it would object to the motion being heard, including on the bases that (a) neither Ms Mobbs nor the members of the Professional Standards Committee had been joined to the proceedings and they were necessary parties and (b) it was not possible, by a notice of motion filed in the proceedings brought by the Practitioner under s 69 of the Supreme Court Act, to challenge the conduct of Ms Mobbs or the decision of the Professional Standards Committee.

17. Following the completion of argument on the threshold question whether the notice of motion should be heard, the Court stated that the Practitioner would not be permitted to be heard on that motion at the hearing, with reasons to follow when judgment was delivered. My reasons for adopting that course were the two matters raised by the Commission indicated above. It should be noted that by his motion, the Practitioner makes serious allegations against members of the Professional Standards Committee, including denial of natural justice, conflicts of interest and “entrapment”. It ought to have been plain to the Practitioner, who is well-educated and no stranger to litigation, that allegations of that nature could not be raised late in the day, by notice of motion, without joining the persons who are alleged to have failed to comply with their obligations.

18. In fact, it seems likely that the appropriate course is to dismiss the notice of motion filed 28 January 2016, which plainly cannot proceed as presently formulated. However, the Practitioner has not been fully heard in that respect, and against the possibility that it may be said that there is some advantage in keeping that motion alive following delivery of this judgment, I propose that it be listed for directions at a time to be fixed before the Registrar. On that occasion, the Practitioner should advise what course he wishes to take in respect of it. It should not be thought by the Practitioner that the two matters on which I have relied in my decision not to hear him on the motion are the only obstacles he faces in any attempt (a) to challenge the decision of a body made more than five years ago from whose decision there was a right of appeal and (b) to challenge the conduct made by a particular officer of the Commission to the extent, if any, she was involved in steps taken in response to litigation brought by him in this Court in 2015. He would be well-advised to seek legal advice as to the viability and utility of those proposed challenges before taking any further step.

19. I turn now to the six grounds raised by the amended summons. What follows uses the numbering adopted by the respondents.

Ground 1 – the validity of the appointment of Judge Marks

20. The Attorney intervened in relation to grounds 1 and 6 of the amended summons and it is convenient to deal with them first, following the order taken by the Practitioner in his oral submissions. They turn upon the participation by Judge Marks as a member of NCAT.

21. The following facts were established by copies of primary documents tendered by the Attorney. The Honourable Francis Marks had held office as a deputy president of the Industrial Relations Commission of New South Wales and as a member of the Industrial Court of New South Wales. He was appointed to act as a judge of the District Court of New South Wales for the period commencing on and from 1 July 2013 and expiring on 30 June 2014. The commission signed by the Lieutenant-Governor stated that “during which time you shall exercise this office at such places and times as may be arranged with the Chief Judge of the said Court”. Judge Marks was also appointed to act as a judge of the District Court, by separate commission under the hand of the Governor, for the period commencing 1 July 2014 and expiring on 30 June 2015.

22. On 11 December 2013, which is during the first year in which Judge Marks was appointed an acting judge, the President of NCAT executed an instrument of appointment pursuant to s 15(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) in the following terms:

“I, Justice Robertson Wright, President of the New South Wales Civil and Administrative Tribunal, hereby appoint Frank Marks, an Acting Judge of the District Court of New South Wales, as a Member of the New South Wales Civil and Administrative Tribunal in respect of each set of proceedings to which he is allocated as the presiding Member by the List Manager of the Health Practitioner Division List, whilst he remains an Acting District Court Judge.”

23. The Practitioner’s submissions in relation to ground 1 attached to the closing words, “whilst he remains an Acting District Court Judge”. He said that Judge Marks was appointed as a “term member” of NCAT, that such an appointment must state an end date, that properly construed (in a way so as not to exceed the power being exercised) that end date should be regarded as 30 June 2014, being the date upon which Judge Marks’ then commission as an acting judge would expire, and that in the absence of any further appointment, anything that his Honour did thereafter purporting to be a member of NCAT was invalid. He placed weight on the duty said to be imposed by the words “shall exercise this office” in the commission.

24. These submissions are misconceived. First, Judge Marks was not appointed in June 2013 as a “term member”, which is the description given to some members of NCAT in s 9(4) of the CAT Act. As the instrument itself made clear, the source of the power exercised by the President of NCAT was s 15(2). That subsection was in the following terms:

“(2) President may appoint NSW judicial officer to act as member

Without limiting subsection (1), the President may appoint any NSW judicial officer to act as a member of the Tribunal in relation to particular proceedings before the Tribunal if:

(a) the President is satisfied that the appointment of the judicial officer to act as a member is necessary to enable the Tribunal to exercise its functions effectively in the proceedings, and

(b) the relevant chief judicial officer agrees to the NSW judicial officer’s appointment.”

25. In contrast with members appointed pursuant to s 10(3) (as to which see below), the limitations attaching where a person is appointed pursuant to s15(2) are not temporal, but instead turn upon “particular proceedings before the Tribunal”.

26. Subsection 15(5) provides that in that section, “NSW judicial officer includes a retired NSW judicial officer”. Section 4(1) provides that a “NSW judicial officer” is, among others, “a judicial member of the Industrial Relations Commission”. There was no suggestion by the Practitioner (who, as will be seen, does not refrain from making the most serious allegations, even when unsupported by evidence) that the proceedings brought by the Commission were outside the class of proceedings in respect of which Judge Marks had been appointed under s 15(2), nor that the preconditions to the exercise of that power were not satisfied. The appointment was made prior to NCAT coming into existence, but that is expressly authorised by s 8 of the CAT Act. It is plain therefore that the power under s 15(2) was available.

27. I think that the Practitioner submits that because of the duty to exercise the office of an acting judge of the District Court, arising from the words “shall exercise this office”, it was impossible for him to be appointed as a member of NCAT. If he does in fact make that submission, I would reject it. It is not shown that there is any incompatibility in the two positions. What is more, the CAT Act expressly authorises the appointment of judicial officers.

28. The Practitioner is correct to observe that there was a limitation upon the extent to which the s 15(2) instrument authorised Judge Marks to act as a member of NCAT, expressed in the closing words of the instrument, “whilst he remains an Acting District Court Judge”. However, I reject the submission that those words have the effect that the instrument ceased to operate after 30 June 2014. It is established that Judge Marks was an acting judge on 30 June 2014, and on 1 July 2014, and indeed on every other day in 2014. The fact that he held that office by reason of two separate commissions (itself being a consequence of the fact that the power to appoint an acting judge under s 18(1) of the District Court Act 1973 (NSW) is limited to “a time not exceeding 12 months to be specified in the commission”) does not mean that the appointment as a member ceased after 30 June 2014. As a matter of ordinary language, where an acting judge is appointed for two continuous terms, he or she “remains” an acting judge throughout the entirety of both terms.

29. The Practitioner makes the point that it could not have been known, in December 2013, that Judge Marks would be reappointed for a second 12 month term. That is so. But it was also not known whether Judge Marks might retire early, or be incapacitated, or for some other reason cease to be an acting judge. The fact that the one could not, in December 2013, identify with certainty a date on which Judge Marks would cease to be an acting judge does not produce the result that the instrument is to be read as if it were confined to a period ending on 30 June 2014.

25. There is a further independent obstacle to the acceptance of the Practitioner’s submissions. It is true that in the second half of 2014, NCAT, presided over by Judge Marks, conducted procedural hearings, including a hearing on 10 September 2014 involving two applications by the Practitioner (then represented by his solicitor) to strike out certain of the Commission’s particulars (I deal with this further below). However, the actual hearing, which led to the Stage One decision, commenced on 8 December 2014. A separate instrument appointing Judge Marks as a principal member of NCAT for the period commencing 24 November 2014 and expiring 23 November 2016 was in evidence. That appointment was different from the previous appointment. It was made by the Attorney-General pursuant to s 10(3) of the CAT Act, following a resolution of the Cabinet of 24 November 2014. Unlike the earlier appointment, that was an appointment of Judge Marks as a “term member”. That appointment alone was sufficient to validate the appointment of Judge Marks at all relevant times, namely, throughout the hearing and determination of the decisions of NCAT which the Practitioner impugns.

26. It follows that there is no occasion to consider the operation of the de facto officer doctrine, or whether the fact that the Practitioner’s summons filed and dismissed earlier in 2015 alleging (different) jurisdictional errors said to have been made by NCAT (Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63), precludes his latest challenge.

27. However, one matter should be added. The Practitioner unequivocally and repeatedly submitted that Judge Marks had acted “dishonestly” in acting as a member of NCAT after 1 July 2014. This arose, so the Practitioner contended, because Judge Marks must have been aware that his appointment ceased on 30 June 2014.

28. The Practitioner’s submission of dishonesty is untenable. This is not because of some technical legal deficiency. The Practitioner advanced those submissions knowing that at the times he alleged Judge Marks to have acted dishonestly, Judge Marks had been reappointed as an acting judge of the District Court. There was not a skerrick of evidence to which the Practitioner pointed suggesting that Judge Marks could ever have been under the slightest doubt as to the validity of his appointment. The submission should never have been made.

Ground 6 – the alleged “conflict of interest”

34. Ground 6 of the amended summons alleged a “conflict of interest” arising out of documents tendered by the Practitioner which suggested that Judge Marks advertised, on a website and on a “LinkedIn” page, his services as an arbitrator and mediator. The evidence adduced by the Practitioner only established that Judge Marks had advertised those facts in April 2015, after the conclusion of the litigation involving the Practitioner. More importantly, there was nothing to establish that Judge Marks had been involved in any particular arbitration or mediation which might have a bearing upon the issues raised by the proceedings brought by the Commission against the Practitioner (for example, if it were shown that the Commission had previously retained Judge Marks as a mediator). Indeed, the areas of expertise identified on the “LinkedIn” page, although wide-ranging, did not include matters relating to the regulation of the health profession. It is clear law that the bare assertion of a conflict of interest “will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated”: Ebner v Official Trustee [2000] HCA 63; 205 CLR 337 at [8].

35. In his submissions in reply, the Practitioner submitted:

“Principle Member Marks has acted dishonestly in his trade as an adjudicator. According the Governor’s Instrument of Appointment ... was commissioned by the Governor to act as a Judge of the District Court until 30 June 2015. During this time, Principle Member Marks was falsely advertising that he was a retired judge. The screenshot for the business advertising website ... was saved on my computer on 29 April 2015.

For the reason of dishonesty in his trade, Principle Member Marks would not bring an impartial and unprejudiced mind to the resolution of the question” [sic].

36. Again, this is a submission that should not have been made. There is nothing false in Judge Marks advertising that he was a retired judge. I regard the statement as one which is true; at the very worst, it is incomplete. In any event, there is nothing to suggest that any error or incompleteness on a LinkedIn page could have any bearing on how an experienced former judge would deal with the complaint by the Commission.

37. The Practitioner points to guidelines prepared by the NSW Attorney-General for the appointment of acting judicial officers, which state: “during the term of any Commission, acting judicial appointees must be available to serve and must not be engaged in any activity or employment, which is incompatible with judicial office.” I am not persuaded that there has been shown to be any breach of that guideline. I see nothing incompatible with an acting judge of the District Court being retained, at times when his or her services are not required by the District Court, as an arbitrator or mediator (both of which are means of resolving litigation long recognised by the rules of court). Nor am I persuaded that any breach of that guideline would, without more, produce the result that there was an apprehension of bias in relation to NCAT’s resolution of the proceedings brought by the Commission.

Refusal of relief in the exercise of discretion?

38. The primary submission advanced by the Commission was that the Court should refuse any relief by way of judicial review in the exercise of its discretion, because the Practitioner had deliberately chosen not to exercise the statutory right of appeal which he enjoyed. The circumstances in which that submission is made are unusual.

39. An appeal lies as of right on a question of law, and with leave on any other ground: CAT Act, Sch 5, Pt 6, cl 29. It is clear that the Stage Two decision is a final decision, and that the Practitioner would be entitled to appeal pursuant to statute not only from it, but also from the Stage One decision upon which it turns: see Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 at [6]-[8].

40. The existence of a right of appeal has been pointed out to the Practitioner on no fewer than six occasions. First, in March 2015, this Court (differently constituted) heard and determined two summonses pursuant to s 69 of the Supreme Court Act brought by the Practitioner in relation to the Stage One decision of NCAT: Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63. After referring to the provisions conferring a right of appeal, the judgment stated at [51]:

“Fifthly, it is a well-established principle that relief of the kind available under s 69 of the Supreme Court Act will not generally be granted if there is another equally effective and convenient remedy: NSW Breeding and Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales [2001] NSWSC 494; 53 NSWLR 559 at [16] and cases cited there. The Practitioner could have sought leave to appeal from the interlocutory orders made by NCAT. Perhaps more significantly, once final orders are made he will have a right of appeal on a question of law and will be able to seek leave to appeal from the final decision on any other ground. Since the interlocutory orders almost certainly will be superseded shortly, the Practitioner will have remedies available to him to correct any error of law that may affect NCAT’s final orders.”

41. That judgment preceded the Stage Two decision. Notwithstanding that paragraph, the Practitioner commenced further proceedings under s 69 some six weeks later, after NCAT delivered its Stage Two decision. The Commission, by letter dated 14 May 2015, drew the Practitioner’s attention to the rights of appeal which he enjoyed. On 15 June 2015, the Registrar of this Court explained to the Practitioner that the availability of a statutory right of appeal might give rise to a discretionary reason for the refusal of judicial review. Three days later, on 18 June 2015, the Commission referred to the comments of the Registrar in the following terms:

“We note that the Registrar urged you to reconsider the pathway you have chosen in Court on 15 June; that is, to withdraw the judicial review proceedings and to instead proceed by way of a statutory appeal. You indicated to the registrar that this is a deliberate and considered choice you have made in pursuing judicial review and you are not prepared to proceed by way of a statutory appeal.

…

The Commission will consent to you filing the Notice of Appeal out of time so long as you, by close of business on Friday 26 June 2015, file a Notice of Appeal under sch 5 cl 29(9) of the CAT Act and an Application to appeal out of time.

We put you on notice that the Commission will oppose any application for leave to appeal out of time that is filed after Friday 26 June 2015.”

42. Next, in the course of dismissing an ill-conceived application for a stay in Quach v Health Care Complaints Commission [2015] NSWCA 187, Meagher JA observed (at [18]) that the Practitioner had been informed that his entitlement to bring an appeal was a discretionary factor to be taken into account when deciding whether relief under s 69 would be granted. His Honour added at [21]:

“The extension of time sought by the Practitioner is for such a period as would permit ‘all judicial reviews’ to have been concluded. In doing so, it wrongly assumes that relief by way of judicial review should be sought before any rights of appeal are exhausted. Where there is, as here, a remedy by way of appeal which is available and effective, that remedy ought be pursued first and the failure to do so will generally provide a reason for the refusal of any relief by way of judicial review: see Quach v New South Wales Civil and Administrative Tribunal at [51]; and Hill v King (1993) 31 NSWLR 654 at 656, 658-659.”

43. In a further judgment delivered on 8 October 2015 in relation to costs (Quach v Health Care Complaints Commission (No 2) [2015] NSWCA 311), Meagher JA said at [6]:

“On two occasions prior to the hearing of these motions, the Practitioner was informed that his chances of successfully obtaining the relief sought in the underlying proceedings for judicial review were most doubtful. On 15 June 2015, the Registrar of the Court of Appeal advised the Practitioner that the Court may not make orders of the kind sought by him under s 69 of the Supreme Court Act 1970 (NSW), where a statutory right of appeal exists and has not been pursued. This was also explained by Sackville AJA in proceedings brought in this Court in relation to a challenge to an earlier decision of NCAT, again by means of judicial review: Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63 at [51].”

44. I accept the Commission’s submission that the Practitioner’s perseverance in seeking relief under s 69, despite the inappropriateness of that course given the existence of a statutory right of appeal, is relevant to discretion. However, in the circumstances of this case, there having been full written and oral submissions on all grounds, I would not dismiss the summons without first having regard to the substantive matters of which the Practitioner makes complaint.

Ground 2

45. Ground 2 of the amended summons asserted that there had been a lack of natural justice and that the judicial member and the panel had been biased in respect of their treatment of a complaint relating to the cervical cancer vaccine Gardasil. This arises out of a particular of the Commission’s complaint that on 13 July 2007, the Practitioner exercised poor clinical judgment in recommending the vaccination Gardasil for a patient who at the time was aged 29. At the time, a different vaccination (Cervarix) was recommended in clinical guidelines for women of the patient’s age, and Gardasil was only recommended for women aged from 10 to 26 years. There was evidence before NCAT that the manufacturers of Gardasil had proposed to seek approval to market the drug in the United States to women through to the age of 45. There was evidence from the Commission’s expert, a general practitioner, as follows:

“At the time of administration, July 2007, Gardasil was only indicated for women aged from 10-26 years old. [Patent AC] should have received Cervarix, as she was aged 29. I note in his lawyer’s letter to the HCCC dated 23.2.2008 Dr Quach presented documents that show in November 2007 that Gardasil ‘may offer protection for women up to the age of 45’. Safe doctors are not early adopters; they follow guidelines of the day.”

46. NCAT preferred that evidence, was “comfortably satisfied” that the allegation in relation to Gardasil was made out, and that that constituted unsatisfactory professional conduct: at [297] and [301] of the Stage One decision. In his amended summons, the Practitioner contends:

“The cervical cancer vaccine, Gardasil, is licensed for women between age 9 and 45. This up to date information was not considered by the general practitioner witness, Dr Simon Young, Acting Judge Frank Marks and the panel. This conduct is in contravention of the High Court ruling cited above.”

47. The reference to the “High Court ruling” is a reference to the passages in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 44 and 45 to the effect that an implication may readily be discerned from the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision, that such decision be based on the most current material available to the decision maker.

48. There is nothing in the Practitioner’s complaint. NCAT had before it competing testimonial evidence from two medical practitioners. No error is shown by the fact that it preferred the evidence of Dr Young. The Practitioner’s reliance on Peko-Wallsend is inapt. The passage has no application to the resolution of competing expert testimony by NCAT. Finally, in support of his contention that Gardasil is licenced for women aged between 9 and 45, the Practitioner sought to tender a document downloaded from the Therapeutic Goods Administration website stating that “Gardasil is indicated in females aged 9 through 45*”. The document is dated 27 August 2009, more than two years after the complaint particularised against the Practitioner. Secondly, the qualification indicated by the asterisk reflects the fact that “immunogenicity studies have been conducted to link efficacy in females aged 16 to 26 years to the younger populations”. In any event, the complaint was a departure from the guidelines.

49. This Court indicated that it would rule on the Commission’s objections to the tender of the TGA document at the time it delivered its judgment. I propose that the Practitioner’s tender of the document be rejected. It was not before NCAT, and is not relevant to any issue arising on the amended summons.

50. A second aspect of ground 2 was NCAT’s preference for the evidence of Dr Pethebridge (called by the Commission) over the evidence of Dr Bertucen (called by the Practitioner) in relation to a diagnosis of Narcissistic Personality Disorder in the Practitioner. The Practitioner contends that because Dr Bertucen’s report was more recent, NCAT was obliged to accept it in accordance with the statement from Peko-Wallsend referred to above.

51. That submission is ill-founded for the reasons already given. Consistently with its obligation to evaluate the competing evidence, NCAT gave the following reasons in the Stage One decision:

“410. We reject the opinion of Dr Bertucen that the respondent does not suffer from a narcissistic personality disorder. His emphasis on the ability of the respondent to practice “safely” places undue emphasis on recent brief supervisors’ reports over a period of a few months, and ignores the serious concerns for the safety of patients reflected in the more detailed supervisors reports from the first three practices, the circumstances in which the respondent’s services were terminated, and the comprehensive criticisms of Dr Young concerning the inability of the respondent to practice medicine safely.

411. We prefer the methodical, structured and cautious manner in which Dr Pethebridge set out an evolving discussion which ultimately pointed to a diagnosis of narcissistic personality disorder. We accept the reasoning process of Dr Pethebridge and his diagnosis. For completeness we also accept the establishment of the factual basis upon which Dr Pethebridge came to his conclusion as having been established to the requisite standard in the course of these proceedings.

412. We are comfortably satisfied that the respondent suffers from a narcissistic personality disorder.”

Ground 3 – “altering of evidence by Tribunal”

52. This ground is related to ground 2. The Practitioner complains that questioning by the panel member, Dr Giuffrida, was “so active, as to alter the evidence” of Dr Pethebridge and attempt to alter the evidence of Dr Bertucen. In his written submissions, the Practitioner complains that this amounted to “tampering” with the evidence of those two witnesses.

53. There is nothing in this ground. Contrary to the Practitioner’s submission, Dr Pethebridge did not alter his evidence. The two passages to which the Practitioner refers relate to two different topics. The first (T199.20) was Dr Pethebridge’s view that the way in which a personality disorder might have an adverse effect on nearby persons was not a matter taken into account in the definition of a “personality disorder”. The second passage (T205.6) was Dr Pethebridge’s agreement that a person suffering from a personality disorder will have adverse effects on those around them. The first is a matter of definition, while the second, it may be thought, is a matter of common sense. The questions posed by Dr Giuffrida did not amount to an alteration in Dr Pethebridge’s evidence. Even if that were not so, there is nothing wrong – and indeed it is common practice – for courts and tribunals (including specialised tribunals) to ask questions of witnesses. Finally, as previously noted, the conclusion that there is nothing in this ground is strengthened by the fact that the Practitioner’s counsel took no objection at the time.

54. To the extent that this ground extends to an alleged attempt to alter (or “tamper” with) the evidence of Dr Bertucen, it is based on the same matters and is resolved for the reasons already given.

Ground 4 – preferring the evidence of Dr Young over Dr Beran

55. Dr Young, a general practitioner, was called by the Commission as an independent expert in relation to the clinical particulars in the notices of complaint. Dr Beran, a neurologist, was called by the Practitioner and his report was admitted over the objection of the Commission. There was some conflict between the evidence of the two doctors. In some instances Dr Beran agreed with the opinions of Dr Young and in a number of places in its Stage One decision, NCAT made findings which relied upon the evidence of both doctors: see for example at [275] and [334]. Where there was a divergence in the evidence of the two doctors, NCAT preferred the evidence of Dr Young.

56. The Practitioner contends that this amounts to “contravention of Supreme Court ruling Halverson v Dobler Halverson by his tutor v Dobler [2006] NSWSC 1307”. The Practitioner reads that decision to hold that there was jurisdictional error in NCAT failing to accept the opinions of the specialist Dr Beran where his evidence conflicted with that of Dr Young. The Practitioner also submits that “acting Judge Frank Marks and the tribunal panel ignored the report by Dr Beran”.

57. Halverson stands for no such proposition. There is no rule that the evidence of a specialist outweighs the evidence of a general practitioner. The matter was dealt with expressly by NCAT at [47] in giving reasons for admitting the report of Dr Beran:

“During the course of the conduct of a voir dire by counsel for the HCCC it emerged that Dr Beran had practised as a general practitioner in the 1970s, and had sat and passed a fellowship exam conducted by the RACGP. He has also acted as an examiner for the RACGP. Furthermore, he has a commission in the Royal Australian Navy which requires him to perform the functions of a general practitioner if deployed. He said that he has kept himself appraised of general practice for this purpose. Furthermore, Dr Beran thought that in reviewing the work of a general practitioner he would be more likely to set a higher standard than a lower standard as to what constituted acceptable practice.”

58. No error is shown by NCAT preferring, for those reasons, the evidence of Dr Young. Plainly the Practitioner is wrong to assert that NCAT “ignored” the report by Dr Beran. For completeness, it may be noted that, at the hearing, the Practitioner objected to the tender of Dr Young’s report, even though it was before NCAT and he had made submissions based upon its acceptance by NCAT. His objection should be overruled.

Ground 5 – apprehended bias

59. As formulated in the amended summons, this ground is derivative upon grounds 2, 3 and 4, and would stand or fall with those grounds. However, in his written submissions and in his oral submissions, the Practitioner complained of further matters. The first was that as a result of a pre-trial hearing in September 2014, there were amendments made to the complaints by the Commission and an amendment to orders sought to add a “prohibition order”. The Practitioner says this should not have occurred. In particular, in oral submissions he said, repeatedly, but without any elaboration, that this amounted to a contempt of orders earlier made.

60. The amendments to the complaints were relatively minor. More importantly, with insignificant exceptions, they reduced the Commission’s case, by deleting or modifying particulars of the complaints. The Practitioner complains that leave was neither sought nor granted for those amendments, and submits there was a lack of due process. It is true that there was no formal order granting leave. However, it was plain at the conclusion of the hearing (at which the Practitioner was represented by his (former) solicitor) that the complaints as amended would be filed and served, and, in any event, at the commencement of the hearing in December 2014, where the Practitioner was represented by counsel, that course was taken.

61. The Practitioner also complains that there was no leave for the making of a prohibition order. It is not entirely clear to me whether the Practitioner’s concern is directed to the possibility of a deregistration order following the Stage Two decision, or the making of interlocutory protective orders following the Stage One hearing. If the former, then it is clear from the transcript of the first day of the Stage One hearing that his counsel was well aware of the possibility of such an order. Judge Marks asked during his counsel’s opening, “Is this the first occasion on which he’s confronted either deregistration or suspension?” and was told that it was not; there is no suggestion that the possibility took counsel by surprise. To the extent that the Practitioner submits that there was prejudgment in relation to the Commission’s application for a prohibition order, the submission is undercut by a statement made by Judge Marks: “that’s important he understands there’s going to be a prohibition order sought and presumably you will speak to that and why.”

62. If I have misunderstood the Practitioner’s complaint and it is based on the order made following the conclusion of the Stage One hearing, it is dealt with below.

63. In oral submissions, the Practitioner asserted that Judge Marks had in effect “forced” his counsel to agree to a two stage hearing (separating whether the complaints were made out, and, if so, what orders should be made). Those submissions were made by reference to p 77 of the transcript of 8 December 2014 when the following exchange occurred:

“Principal Member Marks: … currently we’re going to do this on a stage basis and we’re currently engaged in stage one. Ms Mathur you’re not unhappy with that?

Mathur: No.

Principal Member Marks: And you’re happy with that Mr McKeown?

McKeown: Yes.”

64. The Practitioner only tendered p 77 of the transcript. Helpfully, the Commission tendered the previous page of the transcript, where the question of the staging of the hearing was introduced by the Practitioner’s counsel who said: “I’m in favour of the two-stage approach”. Ms Mathur for the Commission said that “the Commission is in the Tribunal’s hands with respect to whether it is suitable to do a one or two-stage hearing”. There is nothing in the complaint that Judge Marks somehow imposed a two stage process upon the proceedings. The process was proposed by the Practitioner (as it commonly is in matters such as this) and acquiesced in by the Commission.

65. The Practitioner also impugns the request from Judge Marks that he would be “assisted with some written submissions perhaps on the points of law which we’re here to cover”. The Practitioner elaborated on this point in oral submissions. As I understood him, his complaint was that the invitation for written submissions would increase the costs of the proceedings. Whether or not that is so, it does not disclose bias or any improper conduct.

66. Finally, the Practitioner complains that on the last day of the Stage One hearing, Judge Marks “instructed counsel for the HCCC to make submissions for an interlocutory order”.

67. There was a short exchange after the luncheon adjournment on the final day of the hearing as to the power to make an interlocutory order pending the decision. Ms Mathur and Mr McKeown were agreed that there was power. Mr McKeown then said “but your Honour, I’d invite you not to do that because it would …”. NCAT indicated that “we won’t do anything without inviting submissions”.

68. At the conclusion of the hearing, Judge Marks gave a short judgment, noting that both parties agreed that there was power to make interlocutory orders, and varied the practice conditions currently imposed on the Practitioner in relation to supervision (which was increased from “level 2” to “level 1”). That order has, of course, been superseded by NCAT’s subsequent decision to deregister the Practitioner.

69. Once again, the fact that NCAT, having heard all the evidence and submissions from the parties, of its own motion, determined to impose additional conditions, could not give rise to a reasonable apprehension of bias or the actual bias of which the Practitioner complains.

Conclusions

70. It will be seen from the foregoing that no basis is disclosed for granting any of the relief sought by the Practitioner’s amended summons.

71. The amended summons seeks orders declaring that NCAT’s decision is void and a stay. It also seeks “an extension of time for appeal (expired 19 May 2015) for a merits review of [the NCAT decisions] until all judicial reviews have concluded in the New South Wales Court of Appeal and High Court of Australia and 28 days after that, be granted”. I regard that as an application to extend the time within which to appeal on a question of law or with leave on any other ground. There is no basis for making any such order, in circumstances where no grounds have been identified, nor any explanation given for the Practitioner’s delay and unwillingness to follow the course repeatedly suggested to him to which I have earlier referred.

72. I have taken the course of addressing the substance of the matters of which the Practitioner complains on their merits, rather than relying upon the entirely unexplained reliance by the Practitioner on judicial review rather than the appeal provided by statute, in light of the fact that the parties have exchanged full written and oral submissions on those grounds. In so doing, I am not to be taken to be disagreeing with the force of what was said by earlier courts about the susceptibility of the Practitioner’s summons to dismissal on a discretionary basis. To the contrary, I respectfully agree with what has been said.

Supplementary procedural matters and costs

73. The Court, during the course of the hearing, deferred ruling on certain other documents sought to be tendered by the Practitioner. The Practitioner sought to tender two “extracts” of transcript of the proceedings in NCAT, transcribed by himself relying upon sound recordings. The Commission objected, because the official version of those transcripts was in evidence. I would reject the tender of the Practitioner’s transcriptions (although noting at the same time that, so far as I can see, there is no material difference between the two).

74. So far as I can see, the effect of the orders made on 7 December 2015 is that paragraph 3 of the unamended 21 October 2015 notice of motion has not been determined. It should be stood over for directions before the Registrar.

75. The intervention of the Attorney-General was appropriate and helpful. However, although the Practitioner must pay the costs of the proceedings he has brought as to which he has failed, he should only bear one set of costs.

Orders

76. For those reasons, I propose the following orders:

1. Reject the Practitioner’s tender of the TGA document dated 27 August 2009 concerning Gardasil and the transcripts of proceedings before NCAT prepared by the Practitioner.

2. Amended summons filed 12 May 2015 dismissed.

3. Paragraph 2 of the notice of motion filed 21 October 2015 dismissed.

4. Paragraph 3 of the notice of motion filed 21 October 2015 stood over to a date to be advised for directions before the Registrar.

5. Notice of motion filed 8 December 2015 dismissed.

6. Notice of motion filed 28 January 2016 stood over to a date to be advised for directions before the Registrar.

7. The Practitioner is to pay the Commission’s costs of the amended summons filed 12 May 2015, the notice of motion filed 8 December 2015 and paragraph 2 of the notice of motion filed 21 October 2015.

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Decision last updated: 10 February 2016