Trinh v Medical Council of New South Wales

[2024] NSWCA 58

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Trinh v Medical Council of New South Wales [2024] NSWCA 58

Hearing dates:

6 March 2024

Date of orders:

15 March 2024

Decision date:

15 March 2024

Before:

Mitchelmore JA; Basten AJA; Griffiths AJA

Decision:

In matter No 2022/307304:

(1)    Dismiss the further amended summons (judicial review) filed on 25 September 2023.

(2)    Order that the applicant pay the respondent’s costs in this Court.

In matter No 2023/51686:

   Dismiss the amended summons seeking leave to appeal filed 25 September 2023.

In matter No 2022/361537:

   Dismiss the further amended notice of appeal filed 25 September 2023.

Catchwords:

ADMINISTRATIVE LAW – functions conferred on professional council – power to delegate functions – no power to delegate power to delegate – delegation of function to persons appointed by Executive officer – whether delegation valid

OCCUPATIONS – medical practitioners –misconduct and discipline – power to suspend registration – delegation of power – delegation to panel appointed by Executive Officer – whether invalid subdelegation

OCCUPATIONS – medical practitioners – misconduct and discipline – obligation of Medical Council to refer complaint to Tribunal if grounds for suspension or deregistration – obligation of Medical Council to refer complaint to Health Care Complaints Commission – Commission to investigate – consideration of statutory scheme

STATUTORY INTERPRETATION – obligation of professional council under National Law to refer complaint to disciplinary tribunal – provisions of National Law to be read harmoniously with State law establishing Complaints Commission – inconsistency – State law to prevail – requirement for investigation prior to referral to disciplinary tribunal

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 4, 80

Health Care Complaints Act 1993 (NSW), ss 11, 14, 39, 90B, 90C, 93

Health Practitioner Regulation National Law (NSW) 2009 (NSW) ss 41J, 41Q, 144, 144D, 144G, 145B, 145D, 159, 159B, Sch 7, cll 1, 29

Cases Cited:

Health Care Complaints Commission v Hill [2022] NSWCA 270

Kirby v Health Care Complaints Commission (2021) 105 NSWLR 217; [2021] NSWCA 139

Livers v Legal Services Commissioner (2020) 103 NSWLR 738; [2020] NSWCA 317

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11

Pridgeon v Medical Council of New South Wales (2022) 108 NSWLR 263; [2022] NSWCA 60

Tangsilsat v Council of Law Society of New South Wales [2019] NSWCA 144

Trinh v Medical Council of New South Wales [2023] NSWCATOD 140

Category:

Principal judgment

Parties:

Dr My Le Trinh (Applicant)
Medical Council of New South Wales (Respondent)

Representation:

Counsel:
T Hall (Solicitor advocate – Applicant)
K Richardson SC / I Fraser (Respondent)

Solicitors:
Proctor Phair Lawyers (Applicant)
Christine Campbell (Respondent)

File Number(s):

2022/307304; 2022/361537; 2023/51686

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

NSW Civil and Administrative Tribunal

Jurisdiction:

Occupational Division

Citation:

[2022] NSWCATOD 105

Date of Decision:

16 September 2022

Before:

Coleman SC ADCJ, Principal Member

File Number(s):

2021/00334658

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 27 September 2021, the respondent, the Medical Council of New South Wales (the Council), received two complaints regarding the applicant, Dr My Le Trinh, a registered medical practitioner. On 27 October 2021, a three-person panel appointed by the Executive Officer of the Council, convened a hearing and resolved to suspend the applicant’s registration pursuant to s 150 of the Health Practitioner Regulation National Law (NSW) 2009 (NSW) (the National Law). The panel also referred the complaints to the Health Care Complaints Commission (the Commission) for investigation, pursuant to s 150D of the National Law. The Council did not refer the complaints to the Civil and Administrative Tribunal, Occupational Division (the Tribunal).

On 24 November 2021, the applicant lodged an appeal with the Tribunal under s 159 of the National Law, which allowed a challenge to the merits of the panel’s decision with a new hearing and fresh evidence. On 4 March 2022, the applicant applied to the Council for a review of the suspension decision, pursuant to s 150A of the National Law. On 14 March 2022, a second three-person panel was appointed to conduct the review. On 23 March 2022, a hearing was conducted following which the s 150 decision was confirmed.

On 7 June 2022, the applicant filed in her own Tribunal appeal an interlocutory application seeking to have the Tribunal dismiss her appeal on the basis that if, as she contended, the first panel was invalidly appointed and its decision was void, the Tribunal did not have jurisdiction as there was no valid decision from which to appeal. On 16 September 2022, the Tribunal dismissed her application finding the Council had not acted invalidly in appointing the panel, nor in failing to refer the complaints against her to the Tribunal under s 145D(1) of the National Law. On 30 September 2022, the applicant discontinued her appeal to the Tribunal, and the proceedings were formally dismissed.

On 14 October 2022, the applicant filed both a summons seeking judicial review of the panel’s decision, and a notice of appeal from the Tribunal’s decision. A summons seeking leave to appeal from the decision of the Tribunal was later filed on 14 February 2023. At the hearing in this Court, the applicant accepted that the issues on each matter were the same and could be dealt with in the judicial review proceedings; the hearing proceeded on that basis.

The issues for determination were whether the Council:

1. had validly delegated its function under the National Law; and

2. having decided to suspend the applicant’s registration, was under an immediate obligation to refer the complaints to the Tribunal for disciplinary proceedings.

The Court (Mitchelmore JA, Basten AJA and Griffiths AJA), dismissing the judicial review proceedings and the appeal, held:

As to the Council’s delegation

1. The Council had power to delegate its functions to a person or group of persons: National Law, s 41J(3). The instrument of delegation had a dual function of delegating the power of suspension and conferring on the Executive Officer a power of appointment of the persons from time to time. Alternatively, the power to determine the composition of the panel is sourced in s 41Q(2). Further, there was no contradiction of cl 29(1) of Sch 7 to the National Law, as that provision is permissive and did not exclude a delegation being made in the manner adopted: [20], [23].

As to the obligation to refer

1. The Council’s opinion engaging s 150(1) was not the same as the opinion required to engage s 145D(1); there was no tension between the decision to suspend the applicant and not referring the complaints to the Tribunal: [29].

2. Pursuant to s 150D of the National Law, upon making an order of suspension the Council was required to refer the complaint to the Commission for investigation. The panel took that step. The effect of that referral was to make the complaint to the Council a complaint to the Commission: s 150D(3). The Council was then precluded from taking further action under the National Law, except under ss150-150J: Health Care Complaints Act1993 (NSW), s 14: [36]-[38].

3. The National Law and the Health Care Complaints Act should, so far as possible be read harmoniously, but to the extent of inconsistency, the latter prevails: Health Care Complaints Act, s 93. It follows that the obligation imposed on the Council by s 145D of the National Law is subject to the operation of the Health Care Complaints Act. The obligation was not engaged in the present case: [43].

   Kirby v Health Care Complaints Commission (2021) 105 NSWLR 217; [2021] 139 applied; Pridgeon v Medical Council of New South Wales (2022) 108 NSWLR 263; [2022] NSWCA 60 at [52] partly disapproved.

JUDGMENT

1. THE COURT: On 27 September 2021, the respondent, the Medical Council of New South Wales (the Council), received two complaints regarding the applicant, Dr My Le Trinh, a registered medical practitioner. The Council has a power to suspend the registration of a medical practitioner, pursuant to s 150 of the Health Practitioner Regulation National Law (NSW) 2009 (NSW) (National Law). On 27 October 2021, a three-person panel was appointed by the Executive Officer of the Council, to consider whether the applicant’s registration should be suspended. That panel (the first panel) conducted a hearing and resolved to suspend the applicant’s registration.

2. The primary issue before this Court was whether the Council had validly delegated its function under s 150, absent which the suspension would have been void and of no effect. There is no issue before this Court as to whether the decision was a proper one for the panel to make on the facts before it: the only question is whether it was validly appointed. For reasons explained below, the challenge to the validity of the delegations must be rejected.

3. A second issue was whether the Council, having decided to suspend the applicant’s registration, came under an immediate obligation to refer the complaints concerning the applicant’s professional conduct to the Civil and Administrative Tribunal, Occupational Division, (the Tribunal) for determination by way of disciplinary proceedings. As those complaints have now been referred to the Tribunal by the Health Care Complaints Commission (the Commission) by a process which is discussed below, the practical significance of that alleged breach of statutory duty (if there were a breach) was obscure. However, as, for reasons explained below, there was no breach of duty, that matter need not be explored.

4. There was a degree of complexity in the manner in which these matters have been raised which must be explained in order to understand how the issues should now be disposed of.

Procedural background

5. Following the decision of the first panel to suspend the applicant’s registration, on 24 November 2021 the applicant lodged an appeal with the Tribunal under s 159 of the National Law. That provision allowed a challenge to the merits of the panel’s decision, with a new hearing and fresh evidence. However, on 7 June 2022 she filed an application seeking to have the Tribunal dismiss her appeal on the basis that if, as she contended, the panel was invalidly appointed and its decision was void, the Tribunal could have no jurisdiction because there was nothing from which to appeal. ^[1]

   1. This view was misguided, as explained at [48]-[50] below.

6. On 4 March 2022, before the hearing of the matter before the Tribunal, the applicant applied to the Council for a review of the suspension decision, pursuant to s 150A of the National Law. On 14 March 2022, a second panel of three persons (review panel) was appointed to conduct the review. A hearing took place on 23 March and on 22 April 2022 the review panel published its reasons confirming the decision of the first panel.

7. On 16 September 2022, a senior judicial member of the Tribunal dismissed the application challenging the jurisdiction of the Tribunal on the basis that the Medical Council had acted invalidly in suspending her registration and in failing to refer the complaints against her to the Tribunal. ^[2] The applicant then withdrew her appeal to the Tribunal, which formally dismissed the proceeding. As a result, the correctness of the decision of the first panel has never been reviewed.

   2. Trinh v Medical Council of New South Wales [2022] NSWCATOD 105 (Coleman SC ADCJ) (Trinh v Medical Council).

8. On 14 October 2022, the applicant filed in the Supreme Court a summons seeking judicial review (2022/307304), together with a summons commencing an appeal (2022/361537). On 14 February 2023, the applicant filed a summons seeking leave to appeal from the decision of the Tribunal (2023/51686). The applicant’s further amended notice of appeal, filed on 25 September 2023 (in matter number 2022/361537), makes clear that her appeal was brought on the basis that she had an appeal as of right from the Tribunal’s decision.

9. On 17 March 2023, after the Council provided the delegations as part of its evidence in the judicial review proceedings in the Supreme Court, the applicant filed an application in the Tribunal seeking an extension of time to appeal the review panel decision. On 15 September 2023, the Tribunal refused to grant an extension of time. ^[3]

   3. Trinh v Medical Council of New South Wales [2023] NSWCATOD 140 (Cole DCJ).

10. The purpose of the appeal proceedings in this Court (whether by leave or as of right) is obscure. It is true that pursuant to s 159B(4) of the National Law, a practitioner may not commence proceedings in the Supreme Court for judicial review of action taken by a Council under s 150 until an appeal to the Tribunal on a point of law had been made and disposed of. However, that condition being satisfied, the matters the applicant wished to agitate in the proceedings before the Tribunal could be agitated pursuant to proceedings for judicial review. Those proceedings could have been heard in the Common Law Division. However, because there was an appeal on foot from decisions of judicial members of the Tribunal, one of whom is a District Court Judge and the other an Acting District Court Judge, the proceedings were removed to this Court. The only utility in the appeal from the Tribunal appears to be the potential liability for costs of the unsuccessful proceedings in the Tribunal.

11. At the outset of the hearing, the solicitor advocate who appeared for the applicant, accepted that the issues the applicant was advancing could all be dealt with in the judicial review proceedings. The hearing proceeded on that basis.

Power of suspension

12. It is convenient to identify the power of suspension found in s 150 of the National Law, which appears in Pt 8 (“Health, performance and conduct), Div 3 (“Complaints”), as the first provision in subdiv 7 (“Powers of a Council for protection of public”). Section 150 states:

150   Suspension or conditions of registration to protect public [NSW]

(1)    A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest—

(a)   by order suspend a registered health practitioner’s … registration; or

(b)   by order impose on a registered health practitioner’s registration the conditions relating to the practitioner’s practising the health profession the Council considers appropriate; or

…

(2)   A suspension of a registered health practitioner’s … registration under subsection (1) has effect until the first of the following happens—

(a)   the complaint about the practitioner or student is disposed of;

(b)   the suspension is ended by the Council.

…

(4)   A Council for a health profession may take action under this section—

(a)   whether or not a complaint has been made or referred to the Council about the practitioner …; and

(b)   whether or not proceedings in respect of a complaint about the practitioner … are before a Committee or the Tribunal.

…

(7)   If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who—

(a)   is not a registered health practitioner … in the health profession for which the Council is established; and

(b)   has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act.

13. Section 150A of the National Law provides for a health practitioner to seek a review of a suspension decision, limited to a change in circumstances justifying a variation or setting aside of the earlier decision: s 150A(4). However, under s 150C, the Council has a general power to end a period of suspension imposed by it.

Validity of delegations

14. The applicant challenged the constitution of the panels which considered (and imposed) an order suspending her registration, on the basis that the Medical Council itself did not appoint the panels, but rather delegated its power to do so to the Council’s Executive Officer. There was no dispute that it had power to delegate to the Executive Officer, but, it was submitted, not in a way which permitted that officer to subdelegate the exercise of the power.

15. The Council’s power to delegate is found in s 41J of the National Law:

41J   Delegation by Council and Executive Officer [NSW]

(1)   A Council may delegate to a person the exercise of any of its functions, other than this power of delegation.

(2)   An Executive Officer of a Council may delegate to a person the exercise of—

(a)   any of the functions of the Executive Officer under this Law, other than this power of delegation; or

(b)   any functions delegated to the Executive Officer by the Council, unless the Council otherwise provides in its instrument of delegation to the Executive Officer.

(3)   In this section, a reference to a person includes a reference to a group of persons, including a committee.

16. At the time of the appointment of the respective panels under s 150 and s 150A of the National Law in relation to the applicant, there were two delegations in force. The applicant accepted that only one of them needed to be valid to defeat her challenge. ^[4] The first delegation, made in February 2015, under the heading “Conduct matters”, read:

“To the Conduct Committee, or to two or more persons (at least one of whom is not a registered medical practitioner) approved by the Executive Officer, the power to act under Part 8, Division 3, Subdivision 7 of the Law.”

4. Applicant’s written submissions in reply, par 11.

17. The second delegation, made in December 2019, read as follows:

“The Council delegates its functions under sections 150, 150A and 150C of the Health Practitioner Regulation National Law (NSW) to one or more persons appointed by the Executive Officer from time to time, in accordance with section 150(7) as applicable.”

18. There are several differences in the language used in the two delegations, but no weight was placed upon them by either party in this Court. They should, however, be noted. First, the powers being delegated under the 2015 delegation are those encompassed by ss 150-150J of the National Law, whereas the 2019 delegation is limited to three of those provisions. Secondly, those to whom powers are delegated under the first delegation are “the Conduct Committee, or two or more persons”, whereas the persons referred to in the second delegation are “one or more persons”. Thirdly, the identity of the persons on whom powers are conferred in the 2015 delegation is persons “approved by the Executive Officer”; in the 2019 delegation the persons are to be “appointed by” the Executive Officer. Fourthly, the parenthetical comment in the first delegation became express in the second delegation, namely, the requirement in s 150(7) of the National Law that:

(7)   If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who –

(a)   is not a registered health practitioner or student in the health profession for which the Council is established; and

(b)   has not at any time been registered as a health practitioner or student in that health profession under this law or a corresponding prior Act.

19. The instrument by the Executive Officer selecting the first panel read as follows:

“APPROVAL PURSUANT TO DELEGATION BY COUNCIL

In accordance with the delegation of the Medical Council of NSW “to two or more persons (at least one of whom is not a registered medical practitioner) approved by the Executive Officer its power to act under Part 8, Division 3, Subdivision 7 of the National Law (NSW). I hereby approve the following three persons to exercise that power to act in relation to Dr My Le Trinh …

[Three named persons]

[Signature]

John Jamieson

Director Medical/Executive Officer

Medical Council of NSW

27 October 2021”

The operative words of the instrument appointing the review panel were identical, but after the three names it concluded:

“Approved by

Rebecca Moynihan

Executive Officer

Medical Council of NSW

14 March 2022”

These instruments each adopted the language of the 2015 delegation.

20. It is apparent from each delegation that the Council conferred its functions under s 150 and 150A to a person or group of persons, as was expressly permitted by s 41J(3) of the National Law. What the Council placed in the hands of its Executive Officer was the power of determining the individual composition of the group (or panel) when occasions arose requiring consideration of the exercise of the relevant functions. The Executive Officer is the person responsible for the management of the affairs of the Council, pursuant to s 41Q(2) of the National Law. The respondent submitted that that was a sufficient source of the Executive Officer’s administrative function of identifying the persons to exercise the delegated function on a case-by-case basis. On another view, the administrative function was conferred on the Executive Officer by the instrument of delegation, which had a dual operation. Both of these sources of the Executive Officer’s function should be accepted. Importantly, the substantive function (in this case, of suspension) was not conferred on the Executive Officer, so that there was no breach of the prohibition in s 41J(1) of sub-delegation of the Council’s functions under Pt 8, Div 3, subdiv 7.

21. The terms of the delegations reflected the nature of the functions being delegated, the exercise of which could be required with some frequency and on short notice, and the role of the Executive Officer in administering the affairs of the Council. This was not a delegation to an open-ended class, as the applicant submitted. No doubt the delegation was inchoate until the Executive Officer exercised his or her function of identifying members of each panel, but on that occurring, the delegation took effect according to its terms.

22. Although the delegations did not limit the class of persons who might be called on from time to time to exercise the delegated functions, there was no complaint that the members of the panel were not appropriately qualified.

23. Clause 29(1) of Sch 7, on which the applicant relied, does not call for a contrary conclusion. That provision states that if the National Law authorises a person or body to delegate a function, the person or body “may”, in accordance with the National Law and any other applicable law, delegate the function to “a person or body by name” or to “a specified officer, or the holder of a specified office, by reference to the title of the office concerned”. The terms of that provision are permissive and do not exclude a delegation being made in the terms of the delegations in the present case. Further, and in any event, cl 1 of Sch 7 provides that the application of the Schedule may be displaced, wholly or partly, by a contrary intention appearing in the National Law. Section 41J(3) discloses such a contrary intention.

24. The applicant’s challenge to the validity of the delegations must be rejected.

Failure to refer complaints to Tribunal

Applicant’s submission

25. On the assumption that the delegations were valid, and the first panel’s order of suspension was not invalid for want of an appropriate delegation, the applicant submitted that the state of satisfaction of the panels, warranting the imposition of a suspension, also engaged the duty of the Council to refer the complaint to the Tribunal, pursuant to s 145D(1) of the National Law. That section states:

145D   Serious complaints must be referred to Tribunal [NSW]

(1)   Both a Council for a health profession and the Commission are under a duty to refer a complaint to the Tribunal if, at any time, either forms the opinion that it may, if substantiated, provide grounds for the suspension or cancellation of a registered health practitioner’s … registration.

(2)    However, either the Council or the Commission may decide not to refer the complaint to the Tribunal if of the opinion the allegations on which the complaint is founded (and on which any other pending complaint against the registered health practitioner … is founded) relate solely or principally to—

(a)   … the physical or mental capacity of the practitioner to practise the practitioner’s profession; or

…

(3)    If the Council decides not to refer the complaint to the Tribunal, the Council must instead refer the complaint to a Committee or Impaired Registrants Panel.

…

(5)    This section does not require the Council or the Commission to refer a complaint the Council or Commission thinks is frivolous or vexatious.

Note—

A referral under this section is an application made to the Tribunal for a general decision for the purposes of the Civil and Administrative Tribunal Act 2013.

26. What followed from that submission was not clearly articulated but appears to have been that the failure to refer the matter to the Tribunal invalidated the suspension because it removed the primary mechanism for limiting the period of what is intended to be a temporary suspension, namely disposal of the complaint under s 150(2)(a). The doubts attending that possible linkage may be put to one side: there are other problems which are fatal to the applicant’s case.

27. Two other difficulties may also be put to one side. First, the assumption that the state of mind which was a precondition to the exercise of the power of suspension was the same as that which triggered the obligation to refer a complaint to the Tribunal was false. The criterion specified in s 150(1) does not mirror that in s 145D(1). There is no reference to the grounds for suspension or cancellation of registration as a result of a disciplinary proceeding and a finding of professional misconduct, but rather the section refers to “the protection of the health or safety of any person or persons”, or otherwise that course being “in the public interest”. In fact, the prescribed steps are not merely an order of suspension, but also cover the imposition of conditions.

28. The separate functions reflect the statutory structure. Section 145D is found in a part of the National Law headed “How complaints are to be dealt with”. By contrast, s 150 comes within a part headed “Powers of a Council for protection of public”. As already noted, the power under s 150(1) can be exercised in the absence of a complaint: s 150(4).

29. Even if the Council had formed an opinion that it was appropriate to impose a suspension under s 150(1), it did not follow that the Council had formed the relevant opinion for the purposes of s 145D(1). Accordingly, the contention that there was some incoherence between the step taken by a panel in imposing a suspension on the registration of the applicant and the failure of the Council to refer the complaint to the Tribunal, was misconceived.

30. Secondly, the state of mind of the respective panels was not that of the Council. The nature and purpose of the functions differed. The function of referral to the Tribunal was not delegated to the panels: how the opinion of a delegate exercising a different power was attributed to the Council was not explored.

31. The applicant sought to escape this latter dilemma by relying on the provision in Sch 7, cl 29(5) of the National Law providing that a delegate may, in the performance of a delegated function, do anything that is “incidental to” the delegated function. It was submitted that referring the complaints to the Tribunal for disciplinary proceedings to be undertaken was “incidental to” the exercise of the power of suspension. That submission should not be accepted for reasons revealed by consideration of the whole of the statutory scheme for dealing with complaints concerning the professional conduct of health practitioners, and particularly medical practitioners. That consideration, however, will reveal a more fundamental basis for rejecting the applicant’s contention.

Statutory scheme

32. In understanding the operation of s 145D, attention must be paid, as senior counsel for the respondent submitted, to the terms of s 150D which provides:

150D   Referral of matter to Commission [NSW]

(1) A Council must, as soon as practicable but no later than 7 days after taking action under section 150, refer the matter to the Commission for investigation.

…

(3)   The matter must be dealt with by the Commission as a complaint made to the Commission against the registered health practitioner or student concerned.

(4)   The Commission must investigate the complaint or cause it to be investigated and, as soon as practicable after it has completed its investigation and if it considers it appropriate to do so, refer the complaint to the Tribunal or a Committee for the health profession in which the health practitioner or student is registered.

Note—

See section 145D which provides that both Council and the Commission have a duty to refer a complaint to the Tribunal if, at any time, either of them is of the opinion that the complaint, if substantiated, would provide grounds for the suspension or cancellation of the registered health practitioner’s or student’s registration.

33. This matter was in fact referred to the Commission by the first panel, in its decision of 8 November 2021. ^[5] The exercise of that power fell within the terms of the 2015 delegation which expressly covered all the functions conferred on the Council under Pt 8, Div 3, subdiv 7 of the National Law (which included s 150D). No doubt that power was of a kind which could be characterised as incidental to the power of suspension, it being an administrative step triggered by a decision to suspend a practitioner’s registration. The terms of s 150D are central to the issue of statutory construction relating to the obligation imposed by s 145D.

    5. Written reasons for decision, 8 November 2021, p 13.

34. First, s 150D recognises that complaints require investigation and that a decision to refer a complaint to the Tribunal will be taken after an investigation has been completed. To contend that there is a duty to refer a complaint to the Tribunal before an investigation is inconsistent with that section.

35. Secondly, although the power conferred on the Commission under subs (4) suggests a broad discretionary power to refer the complaint to the Tribunal, “if it considers it appropriate to do so”, the note to the subsection indicates that the obligation imposed by s 145D will be engaged at that point, thus limiting the discretion of the Commission in circumstances where, following investigation, it is satisfied as to the criterion set out in s 145D(1).

36. Thirdly, s 150D(1) refers to “the matter” which led the Council to take action under s 150, thus recognising that there may have been no complaint triggering action. If there were no complaint, the obligation under s 145D(1) would not be engaged. However, upon referral to the Commission, “the matter” is deemed to be a “complaint made to the Commission” – subs 150D(3) – and the powers of the Commission with respect to investigation of a complaint are engaged.

37. It follows that neither the Council nor the Commission is under any duty to refer a complaint to the Tribunal until satisfied that (i) there is a complaint within the terms of s 144 and s 144D of the National Law, (ii) which has been investigated, (iii) found not to be frivolous or vexatious (s 145D(5)), and (iv) has been the subject of consultation between the Council and the Commission (s 145A). At that stage it is both necessary and appropriate for one of the two bodies to take steps to refer the complaint to the Tribunal, and must do so in accordance with s 145D(1) if it forms the necessary state of satisfaction as to the criterion stated in that provision.

38. Indeed, not only is the Council, having made a suspension order, required to refer the matter to the Commission under s 150D(1), but it is then precluded from taking further action under the National Law except under ss150-150J. Section 14 of the Health Care Complaints Act 1993 (NSW) provides:

14   Suspension of action by professional council

(1)   A professional council must not take any action under the Health Practitioner Regulation National Law (NSW) concerning a complaint while it is subject to investigation by the Commission or is being dealt with under Division 8 or 9.

(2)   This section does not limit any power of a professional council under the Health Practitioner Regulation National Law (NSW) to do anything to protect the life or the physical or mental health of any person.

39. Furthermore, the same result is achieved in cases where no action has been taken under s 150. Pursuant to s 144G of the National Law, the Council “must, as soon as practicable after a complaint is made to or by the Council”, notify the Commission about the complaint. The effect of the notification, stated in s 11 of the Health Care Complaints Act, is that “the complaint is taken to have been made in accordance with this Act to the Commission.” Section 14(1) is then engaged so that the Council may not take action under s 145D in relation to the complaint.

40. If either of these routes to the Commission, and the preclusion of the Council from acting under s 145D, were thought to create an inconsistency between the National Law and the Health Care Complaints Act, s 93 of the latter states that it prevails. However, the better view is that there is no inconsistency; the two statutes work harmoniously. ^[6] That is achieved by reading s 145D contextually.

    6. Health Care Complaints Commission v Hill [2022] NSWCA 270 at [30].

41. A number of further provisions may be noted. First, under s 145B, the Council is empowered to “make any inquiries” about the complaint, and also to “refer the complaint to the Commission for investigation”: s 145B(1)(a), (b). The National Law thus draws a distinction between “inquiries” and “investigation”. The function of investigation, for reasons set out above, is invariably carried out by the Commission.

42. Underlying the applicant’s argument as to the incidental power and underlying the substantive argument as to the operation of s 145D, was the proposition that the scheme would be incomplete if an order for suspension of registration could continue indefinitely. That that was not intended followed, it was submitted, from the provision that a suspension was to continue only until the “complaint about the practitioner … is disposed of”, unless earlier ended by the Council. While it is true that the complaint may not be disposed of by the Tribunal, that will usually be because the Commission does not proceed with it. The Commission has power to terminate the matter under s 39(1)(e) of its Act.

43. Under the Health Care Complaints Act decisions to take proceedings before the Tribunal are now a function of the Director of Proceedings exercising the power conferred under s 90B, by reference to criteria specified in s 90C. The mandatory criteria are (a) the protection of the health and safety of the public, (b) the seriousness of the alleged conduct, (c) the likelihood of proving the alleged conduct, and (d) submissions made by the health practitioner. The operation of the legislative scheme was considered in detail by this Court in Kirby v Health Care Complaints Commission. ^[7] The general obligation in s 145D of the National Law is conditioned by this statutory context: in so far as it imposed an obligation on the Council, it was not engaged.

    7. (2021) 105 NSWLR 217; [2021] NSWCA 139 (Gleeson JA, White JA and Emmett AJA agreeing).

44. The applicant relied upon the following statement in Pridgeon v Medical Council of New South Wales:^[8]

“52 By reason of the limitation in s 145D(1), the Medical Council could not have suspended Dr Pridgeon’s registration even if a complaint had been made. If the Medical Council had formed the opinion that the complaint warranted suspension, it would have had to refer it to the Tribunal.”

8. (2022) 108 NSWLR 263; [2022] NSWCA 60.

45. There had been no complaint against Dr Pridgeon, but the Council had powers under s 150 to make orders for the protection of the public or of particular persons. The observation in the judgment was not a necessary step to the conclusion reached. The observation is not consistent with the reasoning set out above, nor was it the subject of the kind of detailed consideration of the legislative scheme which may be found in Kirby. (The Court in Pridgeon did not refer to Kirby.) For the reasons set above, and as the respondent submitted, that statement in Pridgeon should not be followed.

Conclusion

46. For these reasons, the summons seeking judicial review should be dismissed with costs.

Appeal from the Tribunal

47. The same reasoning demonstrates that the appeal from the decision of the senior judicial member of the Tribunal dismissing the application to it, which raised both of the issues addressed above, must also be dismissed.

48. There is no need to determine whether there was an appeal from the Tribunal as of right or only pursuant to leave: the summons seeking leave to appeal should also be dismissed. However, it should be observed that the applicant’s challenge to the jurisdiction of the Tribunal to hear her own appeal was based upon a fallacy. The reasons given by the Tribunal noted that the appellant appeared to accept that “if the Medical Council had jurisdiction to make a suspension order under s 150 of the National Law, which she disputes, the Tribunal has jurisdiction to determine her appeal …”. ^[9] The applicant had relied on a passage from the reasoning of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj ^[10] that, “[a] decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.” From that it was apparently inferred that there was nothing which could be the subject of an appeal.

    9. Trinh v Medical Council at [36].

    10. (2002) 209 CLR 597; [2002] HCA 11 at [51] (Gaudron and Gummow JJ).

49. That inference was false, for the reason earlier explained by Gaudron and Gummow JJ in Bhardwaj:

“45   It is sometimes convenient to ask whether administration decisions which involve reviewable error are either void or voidable, the former signifying that the decision is ‘ineffective for all purposes’ and the latter that is ‘valid and operative unless and until duly challenged but … deemed to have been void ab initio’. The tendency to conceptualise erroneous administrative decisions as voidable rather than void may be the result of the need to treat a decision as having at least sufficient effect to ground an ‘appeal’ or other legal proceedings.”

50. The joint reasons then rejected the utility of the distinction between “void” and “voidable” as labels for administrative decisions, observing:

“46   … Further, the use of the term ‘appeal’ and the proposition that an administrative decision must have sufficient vitality to provide the subject matter of such a curial proceeding should not obscure the fundamental proposition that such an ‘appeal’ or other proceeding for judicial review is an exercise of original jurisdiction by the court concerned.”

51. It is also not necessary to determine whether there are limits on the kind of “jurisdictional decision” which will fall within the definition of “ancillary decision” within s 4(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (Tribunal Act) with its exclusion in parenthesis of “other than an interlocutory decision”. ^[11]

    11. That issue appears not to have been resolved by this Court.

52. Two cases dealing with professional disciplinary matters where a finding had been made of professional misconduct or unsatisfactory professional conduct warranting disciplinary action (described as “stage 1” decisions), described the decisions as ancillary decisions. However, in neither was the definition addressed. In Tangsilsat v Council of The Law Society of New South Wales ^[12] the point was conceded by the respondent; in Livers v Legal Services Commissioner ^[13] the matter was treated by the Registrar as one involving a right to appeal and Tangsilsat was relied upon as supporting that conclusion, without further analysis.

    12. [2019] NSWCA 144 at [13].

    13. (2020) 103 NSWLR 738; [2020] NSWCA 317 at [5].

51. There is merit in keeping a tight rein on the scope of “ancillary decisions” which permit an appeal as of right, especially as they include decisions as to costs which, at least in relation to judicial proceedings, for sound reasons usually require leave. The problem with the definition of “ancillary decision” is that it appears to exclude “interlocutory decisions”, the latter being defined to include a list of matters and “any other interlocutory issue before the Tribunal”. ^[14] Furthermore, the list includes “the summary dismissal of proceedings”, which might readily include dismissal on grounds which could be described as jurisdictional. ^[15]

    14. Tribunal Act, s 4(1) interlocutory decision (i).

    15. The term “ancillary decision” is also used in relation to internal appeals in: Tribunal Act, s 80(2)(b).

Orders

54. For these reasons, the Court makes the following orders:

In matter No 2022/307304:

1. Dismiss the further amended summons (judicial review) filed on 25 September 2023.

2. Order that the applicant pay the defendant’s costs in this Court.

In matter No 2023/51686:

(1)       Dismiss the amended summons seeking leave to appeal filed 25 September 2023.

In matter No 2022/361537:

(1)       Dismiss the further amended notice of appeal filed 25 September 2023.

**********

Endnotes

Decision last updated: 15 March 2024