Woods v Health Care Complaints Commission

[2000] NSWCA 39

CITATION:	Woods v Health Care Complaints Commission [2000] NSWCA 39
FILE NUMBER(S):	CA 40534/99
HEARING DATE(S):	14/02/00
JUDGMENT DATE:	15 March 2000
PARTIES :	Stephen Woods (Claimant) Health Care Complaints Commission (First Opponent) District Court of New South Wales (Second Opponent) Psychologist's Registration Board (Third Opponent)
JUDGMENT OF:	Meagher JA at 1; Powell JA at 2; Fitzgerald JA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	9570/97
LOWER COURT JUDICIAL OFFICER :	Patten DCJ

COUNSEL:	Mr Paul Brereton, SC (Claimant) Miss Anna Katzmann, SC (Opponent)
SOLICITORS:	Corrs Chambers Westgarth (Claimant) D.M. Swain, Solicitor Health Care Complaints Commission (Opponent)
CATCHWORDS:	Judicial Review - Decision of District Court on an Appeal from the Psychologists Registration Board - whether the Psychologists Act 1989 has retrospective operation - conduct alleged to be professional misconduct prior to the Act coming into force.
LEGISLATION CITED:	Psychologist Act 1989 Acts Interpretation Act 1987
DECISION:	Orders in the nature of certiorari quashing the decisions of the second and third opponents with costs here and below; The first opponent’s cross-summons dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40532/99
DC 9570/97

MEAGHER JA
POWELL JA
FITZGERALD JA

Wednesday 15 March 2000

WOODS v HEALTH CARE COMPLAINTS COMMISSION

JUDGMENT

1   MEAGHER JA: I agree with Fitzgerald JA 2   POWELL JA: I agree with Fitzgerald JA 3   FITZGERALD JA: The Psychologists Act 1989 (“the Act”) controls the practise of psychology in New South Wales. Prior to that Act, there was no legislation in this State for that purpose. By s 4 of the Act, subject to presently immaterial qualifications, only a registered psychologist may practise psychology in New South Wales. 4 The claimant is a registered psychologist. He was not entitled to registration unless he was of good character and met other requirements. Act, s6. See also s 7 and s 8 The first opponent does not contend that the claimant is not or was not of good character when he was registered, or that he does not or did not meet the other requirements for registration.
5 However, prior to the Act coming into force, the claimant engaged on one occasion in conduct which would constitute professional misconduct if engaged in by a registered psychologist after the Act came into force. By subs 3(1) :

‘conduct’ means any act or omission;
…..
‘professional misconduct’ includes:
(a) any conduct that demonstrates a lack of adequate:
(i) knowledge;
(ii) experience;
(iii) skill;
(iv) judgment; or
(v) care,
by a registered psychologist in the practice of psychology;
and
(b) a registered psychologist’s contravening (whether by act or omission) of a provision of this Act or the regulations; and
(c) a registered psychologist’s failure to comply with an order made or a direction given by the Board under section 16 or with a condition of registration; and
(d) a registered psychologist’s holding himself or herself out as having qualifications in psychology other than:
(i) those in respect of which the registration was granted;
or
(ii) those recorded in the register in respect of the psychologist; and
(e) any other improper or unethical conduct relating to the practice of psychology;
……
‘registered psychologist’ means a psychologist registered under this Act …”

6 The first opponent made a complaint to the third opponent, relying on subs 14(1)(c) of the Act. Subsection 14(1) provides:

“A person may make a complaint to the Board that a registered psychologist:
(a) has been convicted either in or outside New South Wales of an offence which, from the circumstances under which it was committed, renders the registered psychologist unfit in the public interest to practise psychology; or
(b) is an habitual drunkard or is addicted to any deleterious drug; or
(c) has been guilty of professional misconduct; or
(d) does not have sufficient physical or mental capacity to practise psychology; or
(e) is not of good character.”

The complaint related to the conduct engaged in by the claimant prior to the Act coming into force and alleged that that conduct satisfied paras (a) and (e) of the definition of “professional misconduct”.

7 The third opponent was satisfied that the subject matter of the complaint against the claimant was proved and acted to remove his name from the register in reliance upon subs 16(1)(h) of the Act. Subsection 16(1) provides:

“If the Board is satisfied that the subject-matter of a complaint against a registered psychologist is proved, the Board may:
(a) caution or reprimand the psychologist; or
(b) order that the psychologist seek medical or psychiatric treatment or counselling; or
(c) direct that such conditions, relating tho the psychologist’s practising psychology, as it considers appropriate be imposed on the psychologist’s registration; or
(d) order that the psychologist complete such educational courses as are specified by the Board; or
(f) except in relation to a complaint made under section 14(1)(a), by its order impose a fine on the psychologist of an amount, not exceeding 40 penalty units, specified in the order; or
(g) suspend the psychologist’s registration for such period as the Board thinks fit; or
(h) remove the psychologist’s name from the register,
or exercise any combination of the powers conferred on it by paragraphs (a)-(h).

8 The claimant appealed to the second opponent under s 18 of the Act. The second opponent found the complaint proved but quashed the third opponent’s orders and in lieu ordered that the claimant be reprimanded. Act, s 16(1)(a) 9 The claimant has applied by summons for orders in the nature of certiorari quashing the decisions of the second and third opponents, together with an order that the first opponent pay the claimant’s costs. The second and third opponents have submitted to the orders of the Court.
10 The claimant’s only point is that subs 14(1)(c) does not apply to conduct which occurred prior to the Act coming into force. 11 The Acts Interpretation Act 1987 has no material operation. Common law rules of statutory construction are applicable. Legislation is ordinarily prospective, not retrospective, although the explanation of that general rule presents some difficulty. Broadly speaking, unless a particular statute indicates a contrary intention, legislation which makes new substantive rules or provides new substantive consequences applies only to conduct and events which occur after it comes into force, not conduct and events which preceded it. However, there are a number of qualifications and limitations. The first opponent submitted, with the support of some judicial statements in earlier cases, that legislation which regulates occupational activities in the interests of the public (such as the Act) operates by reference to conduct which occurred prior to the legislation coming into force as well as conduct after the legislation has effect. Extreme examples were suggested to demonstrate benefits which were said to follow from the construction advanced by the first opponent, and disadvantages said to be involved in adopting the approach which is put forward by the claimant. 12 However, the language of the Act contains persuasive indications that conduct which occurred prior to the Act coming into force does not constitute professional misconduct for the purposes of the Act. 13 Each of the grounds for a complaint under subs 14(1) other than “professional misconduct” Act, s 14(1)(c) is a ground for refusing registration under s 6 Although not a basis for refusing registration, “professional misconduct” is a ground for removing a registered psychologist’s name from the register. Act, s 16(1)(h) The plain implication is that only a registered psychologist can commit “professional misconduct”. 14 Further each of pars (a) - (d) of the definition of “professional misconduct” in subs 3(1) is expressly related to conduct by a registered psychologist, ie, a psychologist registered under the Act. While par (e) is not expressly confined to conduct by a registered psychologist, that is implied from both the earlier paragraphs of the definition and the prohibition upon practice of psychology by a person other than a registered psychologist in subsection 4(1). 15 In my opinion, it is unnecessary to resort to any presumption against retrospective legislation or to consider any limitations on or qualifications to that presumption. On the proper construction of the Act, unassisted by any such presumption, subs 14(1)(c) does not apply to conduct engaged in prior to the Act coming into force.
16   The Act is not thereby deprived of any necessary operation, contrary to the concerns expressed in Gaedtke v Health Care Complaints Commission. NSWSC, Administrative Law Division, 30004/94, unreported, 27 June 1995. Conduct prior to the Act coming into force is still potentially material in connection with “good character”. Act, s6(1) and s14(1)(e). See also s 7(1) and s 14(1)(a) 17 In my opinion, the claimant is entitled to the relief sought, with costs here and below. 18 In the circumstances, the first opponent’s cross-summons, which challenged the second opponent’s costs order, must be dismissed with costs.