• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Category: Procedural rulings

Parties: Sue Ann Chivers (Plaintiff)
Health Care Complaints Commission (Defendant)

Representation: Counsel:
S Chivers (Plaintiff) (self-represented)
M Pulsford (Defendant)
Solicitors:
Health Care Complaints Commission (Defendant)

File Number(s): 2026/319006

Publication restriction: No

JUDGMENT

1. The plaintiff commenced these proceedings with the filing of a summons on 3 August 2026. The summons seeks judicial review of two decisions made by the defendant in April 2025, and May 2026, respectively. The plaintiff wishes these decisions to be quashed, and the matter returned to the defendant for consideration according to law.

2. On 24 August 2026, the defendant filed a notice of motion seeking an order pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), that the summons be dismissed.

3. These reasons concern the defendant’s notice of motion.

4. The plaintiff is the daughter of Mr David Bert Chivers, who died on 13 August 2022. I will refer to him as the deceased. The defendant is the Health Care Complaints Commission (the HCCC). One of the tasks of the HCCC is to consider complaints made by members of the public about a health practitioner. A health practitioner includes a nurse.

Background

5. The following history is derived from the affidavit of the plaintiff dated 31 July 2026.

6. The deceased, from January 2019, until his death, lived at a residential care facility called Fresh Hope Care, Clelland Lodge in North Nowra (the facility).

7. From late June 2022 the deceased suffered a clinical deterioration which, in the view of the plaintiff, was due to the facility not recognising downward changes in the deceased’s health.

8. A complaint was made to the Aged Care Quality and Safety Commission (the ACQSC) which resulted in a response from the facility that staff had been given training in respect of changes to a resident’s condition.

9. On 19 July 2022, a general practitioner examined the deceased and concluded that he was suffering from dehydration. The plaintiff informed a nurse at the facility of the diagnosis. On 30 July 2022, the deceased did not recognise the plaintiff, leading to a conversation by the plaintiff with a facility nurse. The nurse told the plaintiff that the deceased was dehydrated. The plaintiff asked the nurse to “organise fluids” but she declined to do so. The nurse also declined a request to call an ambulance.

10. The plaintiff called the ambulance. The ambulance officers gave the deceased some fluid and left instructions for a rehydration plan. The officers spoke to a nurse to arrange increased visits from the plaintiff so she could help with her father’s rehydration. Following the making of arrangements, the plaintiff was told she could only visit for 30 minutes a day, as a result of a public health order.

11. On 5 August 2022, the plaintiff was told by the facility that the deceased “met the criteria for end of life care and the general practitioner had been called”. The plaintiff requested that the deceased be transferred to hospital, which occurred. In hospital the deceased was treated for dehydration and delirium. He went back to the facility a day later, and seemed to be in a better condition.

12. However, on 10 August 2022 the deceased was put into end-of-life care and then died on 13 August 2022.

13. The plaintiff raised her concerns about the treatment of her father with the ACQSC. Factual inconsistencies were evident between the plaintiff’s version of events and that of representatives of the facility. The ACQSC did not pursue the complaint but closed it, without resolving the factual disputes.

14. On 24 December 2024, the plaintiff lodged a complaint with the defendant about the professional care given to the deceased between 26 July and 13 August 2022. Four nurses were the subject of complaint. Three of the nurses were employed at the facility, the fourth was a delegate of ACQSC. The complaints as between the three facility nurses and the fourth nurse were separated. These proceedings only relate to the complaints against the three facility nurses.

15. The defendant told the plaintiff that it had investigated the complaint and made certain findings. On 11 April 2025, the defendant provided the plaintiff with the results of its assessment in relation to the three nurses:

“Based on these findings, the Commission and the Nursing and Midwifery Council of NSW agreed that there was not a departure from acceptable standards by any of the practitioners included in our assessment. Accordingly, we determined that no further action by the Commission or Council.”

16. The plaintiff was dissatisfied with this response, and on 7 May 2025, requested a review of the assessment. In her affidavit she explains that she pointed out to the defendant the reasons why she believed the assessment decision was wrong:

“I stated that the Assessment Outcome had failed to identify and assess substantive issues raised in my complaint, including the contents of the fluid balance charts, the absence of contemporaneous progress notes, the NSW Ambulance records, the Public Health Unit records, allegations that false, misleading and omitted information had been provided to the ACQSC Quality and Safety Commission, and the non-disclosure of documents relating to my father’s care.”

17. On 5 May 2026, the defendant informed the plaintiff that a review had been conducted, and again, certain findings had been made. The findings ended in this way:

“• The Commission’s role is to assess whether care meets acceptable standards of safe care and to identify and prevent any ongoing risk to public health and safety.

• Overall, based on the information available, including that provided by you and that obtained from the providers and facility, the independent clinical advisor was not critical of the care provided by the nursing staff.

Having regard to these findings, the review has concluded that there is no basis for further regulatory action against [the three nurses]. The original assessment decision to discontinue the complaint is therefore reaffirmed.”

The notice of motion

18. As stated above, the motion seeks dismissal of the summons. It does so because, as asserted in the defendant’s submissions, the summons “discloses no reasonable cause of action including because this Court does not have jurisdiction to grant the relief sought by the Plaintiff.”

19. The motion is supported by an affidavit of Mr Feneil Shah dated 24 August 2026. Mr Shah is a solicitor acting for the defendant.

20. The defendant’s submissions rely primarily on two cases. The first is the decision of the Court of Appeal in Hastwell v Health Care Complaints Commission [2021] NSWCA 22 and the second is the decision of Weinstein J in Mohareb v Health Care Complaints Commission [2023] NSWSC 1224.

21. Before looking at Hastwell*,* I observe that the decision in Mohareb was overturned by consent in the Court of Appeal (Mohareb v Health Care Complaints Commission [2024] NSWCA 79). This was not due to any error identified in the primary judge’s decision but arose from a mistake in a letter that had been sent to the plaintiff. The defendant’s reliance on Weinstein J’s decision is therefore not affected by the subsequent overturning of the decision.

22. Moving now to Hastwell, which involved two decisions of the HCCC in relation to a complaint that had been made by Mr Hastwell about his dealings with a psychiatrist who had been retained to write a report for medico-legal purposes. The HCCC’s first response was to say that no further action would be taken in relation to the complaint. Mr Hastwell sought a review of this decision, which concluded that “I remain of the view that no further action is required by the Commission.”

23. Thus, as with the present case, the second decision in Hastwell was itself a review of the earlier decision that “confirmed the first decision of the Commission not to take any further steps to progress a complaint”: Hastwell at [23].

24. Mr Hastwell sought judicial review of the two decisions made by the HCCC. The primary judge (Rothman J) dismissed the summons. The Court of Appeal (Basten JA, Leeming JA and White JA) dismissed the appeal from the primary judge.

25. Basten JA agreed with Leeming JA’s reasons for dismissing the appeal. After expressing this agreement Basten JA continued at [4]:

“… However, there is a more fundamental doubt attending the availability of judicial review to a complainant whose complaint has been considered but not proceeded with.”

26. Basten JA then examined the “[s]cope of jurisdiction to quash”. He first of all discussed the functions of the HCCC including the path by which a complaint might be dealt with. His Honour said, at [7]-[8]:

“7. There are various ways in which a complaint may be resolved, prosecution before a disciplinary tribunal being that which commands the most serious sanctions against a practitioner. Otherwise there are, for example, professional standards committees established under the Act, which can impose conditions on a practitioner’s registration, but not suspend or deregister.

8. Under the Medical Practitioners Act 1938 (NSW), and its successor, the Medical Practice Act 1992 (NSW), a complainant could prosecute proceedings in the Medical Tribunal. That, it would appear, is no longer the case. The function of the Commission is not to ‘refer’ complaints to the tribunal (now the Civil and Administrative Tribunal), but to prosecute disciplinary proceedings itself. Accordingly, a complainant whose complaint is discontinued is denied no ‘right’ to pursue the matter further.”

27. As to the duty owed by the HCCC to a complainant, Basten JA said, from [10]-[13]:

“10. Part 2, Div 4, deals with ‘assessment of complaints’; the purposes of an assessment are identified in s 20. No purpose there identified relates to satisfaction of any obligation to the complainant or obtaining any relief on behalf of the complainant. Section 22 imposes an obligation on the Commission to act within a time period, generally 60 days after receiving the complaint (unless further particulars are sought from the complainant); however, the purpose of the temporal constraint is primarily to promote the public interest, although that may not be entirely so. Whether a complainant could bring proceedings to ensure compliance with the temporal obligation does not arise in the present case.

11. Although it was conceded by the Commission that it owed a duty of procedural fairness to the complainant, the basis of that duty was not identified. Generally speaking, such a duty is owed in circumstances where a body may exercise power adversely to the rights or interests of another person. The conferral of such a power will usually entail an obligation (express or implied) to allow the person an opportunity to be heard against the exercise of the power, and to be notified of material which might support such an adverse exercise of the power. However, that is not always the case: police are not required to provide procedural fairness before arresting a person or obtaining a search warrant with respect to another person’s premises. Furthermore, the complainant is not the object of the exercise of the functions imposed on the Commission: it is the practitioner the subject of the complainant who is the object of possible sanctions and who will usually be entitled to procedural fairness during the complaint-handling process.

12. If a statute ‘confers power to destroy or prejudice a person’s rights or interests,’ it is accepted that principles of natural justice will regulate the exercise of that power. Those principles may be of varying content, but will only be excluded by ‘plain words of necessary intendment’. However, it remains a question of statutory construction as to whether the precondition to the obligation arises in a particular case. It is by no means clear that such an obligation is owed to a complainant in relation to the handling of a complaint against a medical practitioner by the Commission.

13. It is correct, as the applicant submitted, that the paramount consideration for the Commission is ‘the protection of the health and safety of the public’: Health Care Complaints Act, s 3(2). This provision identifies a public interest, not the interest of an individual complainant, and the Commission is given power to pursue such a goal even if the complainant does not wish to, for example, where any dispute between the complainant and the health practitioner has been resolved.” (footnotes omitted)

28. And then at [18]-[19]:

“18. These considerations engage the principled limitation as to the scope of the supervisory jurisdiction, when invoked to quash a decision. The principle is explained in Hot Holdings Pty Ltd v Creasy in the following terms:

‘The proposition that certiorari will lie only in respect of a decision which determines questions affecting rights has led to a number of cases, of which the present is one, where the contention has been that the decision in issue is merely advisory, provides a recommendation, or is made at a preliminary stage of a decision-making process.

Consideration of the requirement for certiorari that the impugned decision determines questions affecting rights, on occasion has been confused with a distinct body of principle. This concerns the existence of a requirement of procedural fairness. The conceptual distinction is neatly illustrated by the decision of this Court in Ainsworth v Criminal Justice Commission. In that case it was held that there had been a failure to observe the requirements of procedural fairness but, nevertheless, certiorari did not lie because no legal effect or consequence attached to the report in question.’

19. If the Health Care Complaints Act conferred any legally enforceable rights on a complainant, they were limited to receiving an acknowledgement that a ‘complaint’ complying with the Act had been lodged, and notification of steps taken to deal with it. The Commission accepted the complaint and gave the applicant notice, in accordance with s 28(1) of the Health Care Complaints Act, of its decision to discontinue dealing with the complaint. It gave reasons for the decision pursuant to s 28(8)(b). There is no suggestion otherwise. Applying Hot Holdings in the context of the statutory scheme, the decision to discontinue dealing with the complaint was not reviewable on the grounds relied on by the applicant.” (footnotes omitted)

29. At [24] Leeming JA said he agreed “with what Basten JA has written doubting the Supreme Court’s jurisdiction to entertain Mr Hastwell’s application.”

30. In Mohareb the plaintiff complained to the defendant about “three, incompetent, negligent & failed surgical operations which were undertaken on me…” by surgeons in a large public hospital where the plaintiff had been treated following an assault upon him. There was a separate complaint about a particular surgeon.

31. In respect of the hospital, the HCCC told the plaintiff that, because of pending legal proceedings, no further action would be taken on the complaint. The plaintiff was advised that he could seek a review of this decision. He did so. A review took place resulting in confirmation by the HCCC that “its initial assessment to discontinue the complaint … had been appropriate on the basis that the matter was already under investigation by some other competent person or body or was the subject of legal proceedings”: Mohareb at [23].

32. The defendant also referred to Health Care Complaints Commission v Hill [2022] NSWCA 270, which involved the question of whether, taken from the headnote, “the Supreme Court had jurisdiction to review the Director of Proceedings’ decision to commence disciplinary proceedings in the Tribunal on the ground of legal unreasonableness”. The HCCC’s Director of Proceedings instituted proceedings in the NSW Civil and Administrative Tribunal (NCAT) against a doctor for his conduct during a medical procedure.

33. Basten AJA said, at [51]-[53]:

“51. The relevant question for present purposes is whether the Director’s decision was insusceptible to judicial review on the ground of manifest unreasonableness. The fact that such a conclusion can only be reached by reviewing the material before the Director, in the light of the policy underlying the paramount consideration of protecting the health and safety of the public, demonstrates the unattractiveness of the exercise of the supervisory jurisdiction on this ground in these circumstances.

52. Indeed, the rationale of immunity may be stronger in the present case than in the case of a criminal prosecution. The Tribunal vested with statutory power to determine whether a health practitioner has been guilty of unsatisfactory professional conduct or professional misconduct is to be constituted by a senior lawyer and two members of the health profession of which the practitioner is a member, and a member of the public. Where the legislature has set up a specialist body of that kind, it is implausible that it intended that a court should be able to determine the circumstances in which matters should be allowed to proceed for the consideration of such a tribunal.

53. Bearing these considerations in mind, in my view the decision of the Director to commence proceedings in the Tribunal was immune from judicial review on the grounds of manifest (or legal) unreasonableness.” (footnotes omitted)

34. Hill is factually different, in relation to its background, to the present case. However, at [55], Basten AJA brought the principles closer to the facts here:

“There is a further reason why order 3 cannot stand. The decision of the Director was not open to relief in the nature of certiorari because it had no relevant effect on the legal rights of the practitioner in the way described by the joint reasons in Hot Holdings set out at [48] above. The relevant decision-maker, with power to affect the rights of the practitioner, was the Tribunal.”

35. Hastwell specifically dictated the result in Adams v Health Care Complaints Commission [2025] NSWSC 1212. Harrison AsJ said, at [37]:

“37. It is my view that the decision in Hastwell does apply here. While the plaintiff may make a complaint against the dentist, it does not create any obligation on the Commission to take any particular action on the basis of that complaint, nor to do more than identify in broad terms the reason that a step has or has not been taken. It follows that this Court has no jurisdiction to review the review decision of the HCCC confirming its decision not to take any further action. It is nevertheless not clear whether all of the plaintiff’s grounds of judicial review relate to the review decision (being the relevant decision). Hastwell would also be fatal to any judicial ground of appeal that relates to the HCCC decision. On this basis, the plaintiff’s application for judicial review is dismissed.”

36. If I follow Hastwell*,* the inevitable conclusion would be that this Court does not have the jurisdiction to grant the relief sought in Orders 1 and 2 of the summons (being orders in the nature of certiorari). If Orders 1 and 2 are not available then Order 3 will automatically fall away.

37. The plaintiff endeavoured to distinguish Hastwell from her case and to persuade me that she still had a viable case, certainly not one susceptible to being dismissed at this stage.

38. A starting point of distinction is the different background to each case. There is no doubt that the origins of the complaint in Hastwell are very different to this case. In Hastwell the alleged misconduct arose from the preparation of a medico-legal report that the doctor had been asked to prepare on behalf of the plaintiff.

39. In the present case the original complaints were about actual treatment or supervision of treatment being provided to the plaintiff’s father. The kind of conduct complained about is therefore quite distinct between the two cases.

40. Notwithstanding the background differences, there are however important points of similarity, the most significant being the manner in which the defendant dealt with the complaints and review. In both cases the first decision was that no further action would be taken and, again in both cases, the review decision endorsed the earlier decision and declined to progress the complaint.

41. The manner in which the defendant dealt with the complaint and review in Hastwell was behind Basten JA’s “fundamental doubt attending the availability of judicial review to a complainant whose complaint has been considered but not proceeded with…” That ‘manner’ also exists in the present case and, I think, must dictate that the court lacks the jurisdiction to make the orders sought by the plaintiff.

42. To further counter Hastwell (and Mohareb) the plaintiff narrowed the scope of her claim in her oral submissions in this way. Firstly, she said:

“Plaintiff: I do believe it's Justice Basten, says:

‘Further, it may be accepted that, where the statute imposes limitations or obligations, those may be enforced by way of orders in the nature of prohibition and mandamus.’

And also Mohareb, in my submission at 25, Justice Weinstein held that:

‘Mandamus and certiorari are available for jurisdictional errors of law.’

His Honour stated that:

‘The Commission might have made a jurisdictional error if, for example, it had failed to comply with some statutory requirement or precondition in exercising its power.’

And my grounds were brought on that the assessment outcome and the review outcome did not identify the allegations in my complaint.”

43. And then later the plaintiff added:

“Plaintiff: Yes, have been brought on ‑ I'm not asking for a review of the decisions. I asserted that the decisions were not legal because they did not identify the specific allegations in the complaint. And then they could not then go through the process of ‑ what's the words actually? ‘Must not discontinue a complaint’ if there's any issue of significant risk to the public.

So my grounds are very narrow, your Honour, and I think that distinguishes them from Hastwell, Mohareb and Adams in that I didn't include the failure to investigate or a review of the decision. It's strictly what was the complaint, what did they identify. And that's pretty well an objective ‑ it's not a prerogative decision. It's an objective decision. And it's identifiable just by comparing the complaint to the assessment outcome and the review outcome, and the Commission also has its own risk assessment tool that does all that. So it's simply: what did they do?”

44. If I understood the plaintiff correctly, her point was that the defendant was obliged, under the Health Care Complaints Act 1993 (NSW) (HCC Act), to identify the complaint because if it did not do so, it could not legitimately discontinue the complaint under s 27. Put another way the HCCC could not discontinue a complaint until it first knew what the complaint was.

45. The plaintiff’s point has the benefit of some logic, but it does not surmount the lack of jurisdiction for the court to make Orders 1 and 2 in the summons. As Weinstein J said in Mohareb, at [68]:

“68. Basten JA’s analysis binding on me [sic]. In any event, after my own independent assessment of the Act, I entirely agree with his Honour. In my view, the Commission does not owe any duty of procedural fairness to a complainant under the Act, and if it did, any such duty would be limited strictly to the matters outlined by Basten JA in Hastwell CA at [19]. The Commission has in any event complied with these requirements in Mr Mohareb’s case. I find that the Court has no jurisdiction to grant the remedies sought by Mr Mohareb, as the Commission’s decision is not amenable to judicial review.”

46. In relation to Weinstein J apparently saying that Basten JA’s analysis was binding upon him, counsel for the defendant conceded that Hastwell does not provide a binding ratio on this point but maintained that the Court should nevertheless apply Basten JA’s considered and forceful dicta, which has been followed in at least two decisions of this Court. At the very least, Basten JA’s words are highly persuasive. Further, Weinstein J in any event conducted his own analysis and came to the same conclusion.

47. Looking again at what Basten JA said in Hastwe**ll, at [19], the defendant here accepted the complaint, gave the plaintiff the required notice under s 28(1) of the HCC Act and gave reasons for discontinuing the complaint under s 28(8)(b). The defendant therefore fulfilled its statutory obligations leaving this Court without jurisdiction to respond to the plaintiff’s summons. Further, as Basten JA said, the plaintiff was not given the necessary “legally enforceable rights” under the HCC Act to enable her to seek judicial review.

48. In turn, it follows that the summons should be dismissed.

49. Another factor that was mentioned by the defendant but not pursued as a reason for dismissal under r 14.3 of the UCPR, was that the summons was filed beyond the limitation period prescribed by r 59.10, namely three months from the date of the decision. The first decision was notified on 11 April 2025 and the second on 5 May 2026. The summons was filed on 3 August 2026, so that the challenge to the first decision is well out of time. It is important to note that the plaintiff is seeking a judicial review of both decisions but has not made any application for an extension of time.

50. The limitation point is probably more relevant to the alternative orders sought by the defendant, which seek to limit the summons to the review decision. Had I not dismissed the whole of the summons I would have acceded to the alternative request. As stated by Leeming JA in Hastwell, at [59]-[60]:

“59. Mr Hastwell exercised his right under s 28(9) to have the decision reviewed by the Commission. The result of the review was to confirm the decision to take no further action. The review by the Commissioner (as opposed to the officer who made the first decision) supersedes the original decision, and is the source of the matters of which Mr Hastwell complains. In particular, it is the second decision which prevents the steps from occurring of which Mr Hastwell complains, including further investigation of the complaint and potentially conciliation with Dr Parmegiani.

60. Insofar as the Commission’s decision on the s 28(9) review affects Mr Hastwell’s rights, it being the operative decision determining his complaint made under s 7 of the Act, it may in principle be amenable to judicial review. Conversely, the earlier decision no longer affects Mr Hastwell’s rights.”

51. The first decision was overtaken by the review decision, making the latter the appropriate decision to challenge. Obviously, this could include the consideration of the first decision in the review.

52. I make the following orders:

53. The summons filed on 3 August 2026 is dismissed.

54. The plaintiff is to pay the defendant’s costs of the proceedings.

55. If any alternative costs orders are sought, written submissions should be filed within 14 days, with the decision to be made on the papers.

**********