Clarke v Health Care Complaints Commission [2026] NSWCATOD 52;

"(1) The hearing listed for 30, 31 March and 1 April 2026 comprising a panel is vacated.

(2) In the event that the applicant wishes to file any applications to the effect that a Tribunal member direct the Registrar to issue summonses in relation to summonses which have been refused to date, that is to be done by 1pm, 27 March 2026. Copies are also to be provided to the respondent by the applicant by 1pm, 27 March 2026.

(3) A hearing is set down on 30, 31 March and 1 April 2026 (the Hearing) for the determination of various interlocutory matters.

(4) At the Hearing, which will comprise a presider only, the following applications are listed:

(a) The interlocutory application of 23 December 2025.

(b) The interlocutory application of 30 December 2025.

(c) Any application filed in accordance with Order 2 of these orders in relation to summonses.

(d) Any directions in relation to the hearing that was vacated.

(5) At the Hearing, any applications by the respondent which are required in order to ensure procedural fairness to the respondent in the event that the respondent is not prepared to meet any of the applications in Order 4 of these orders, are also listed."

1. At the preliminary hearing of the interlocutory matters on 30 March 2026 the Applicant contended she had filed applications relevant to the summons via a ServiceNSW office before the deadline prescribed by Direction 2 of 25 March 2026. However, the Applicant had not provided copies of all of the material to the Respondent. Further, at the hearing the Tribunal noted that only applications in the nature of originating proceedings in the Occupational Division of the Tribunal could be filed via ServiceNSW and any other applications in proceedings must be filed in hardcopy with the Tribunal, either at the Tribunal's registry or by post.
2. While the Applicant did not appear to have complied with the Direction 2 of 25 March 2026, because applications and material were not properly lodged with the Tribunal, in the circumstances and applying ss 36 and 38 of the NCAT Act the Tribunal determined to deal with the Applicant's applications for summons to issue at the preliminary hearing, a course not opposed by the Respondent.

1. The Applicant provided to the Tribunal extensive material including affidavits, documents and submissions provided on: 28 January 2026, 30 January 2026, 6 February 2026, 23 February 2026, 24 February 2026, and 27 February 2026. Much of the material provided by the Applicant related to events prior to 2024.
2. The Respondent provided to the Applicant and the Tribunal written submissions and a bundle of cases, including the 2022 Tribunal decision and the 2024 Court of Appeal decision cited above, as well as: South Eastern Sydney Local Health District v Clarke [2021] NSWSC 63; Clarke v Health Care Complaints Commission [2024] NSWCA 16; Clarke v Nursing and Midwifery Council of New South Wales [2022] NSWSC 15; and Clarke v Health Care Complaints Commission [2024] FCA 753.
3. At the hearing on 30 March 2026 both parties made oral submissions.

1. The Tribunal has jurisdiction to consider an application for a reinstatement order under s 163B(1)(c) of the National Law as conferred under s 163A that provides a right of "review".
2. A reinstatement order under s 163B(1)(c) of the National Law does not have the effect of giving registration to a person (s 163B(3) of the National Law), however, it does allow the Applicant to apply to the Nursing and Midwifery Council (the Council) which then decides whether to grant registration. Section 163C of the National Law identifies the scope of the "review". Section 163C(2) of the National Law relevantly provides: "The review is not to review the decision to make the order, or any findings made in connection with the making of that decision." This is a specific exclusion that prevents re-agitation of the decision to cancel the Applicant's registration as a nurse.
3. The issue before the Tribunal in the substantive proceedings will therefore relate only to whether the Applicant should be permitted to apply for registration as a nurse now that the non-review period of three years has expired, and not as to the contentions of the Applicant that the cancellation decision was in error.
4. The review in the substantive proceedings will not "review" the registration cancellation decision, nor the decisions to impose a non-review period and a prohibition order for a three year period, periods that have now expired.
5. Nor will the substantive review proceedings involve, as the Applicant appears to contend, review of the correctness of any findings made at the time of those decisions in 2022, upheld on appeal in 2024.
6. While the substantive review proceedings will not involve a re-examination of the Applicant's conduct at the time of the previous hearing in 2022, regard may be had to the Tribunal's previous findings in assessing whether or not identified deficiencies have been remedied: Bahramy v Medical Council of New South Wales [2014] NSWCATOD 116 at [84].
7. In the event the stay the Applicant is seeking in the stay application is a stay of the decision to cancel her registration as a nurse, no such grant of a stay is appropriate given the operation of s 163C(2) of the National Law. Any appeal or "review" pathway for the decision of the Tribunal to cancel the Applicant's registration as a nurse ended with the dismissal of the Applicant's appeal by the Court of Appeal on 7 February 2024 (in the absence of any grant of special leave by the High Court).
8. For completeness, the Tribunal will also consider whether there is another basis to grant a stay given the Tribunal has a general power to grant a stay under s 165L(1) of the National Law. The legal principles applying to stay applications under the National Law are uncontroversial and were summarised in Kollias v Pharmacy Council of New South Wales [2024] NSWCATOD 49 at [4]- [5] as cited in Ng v Pharmacy Council of New South Wales [2026] NSWCATOD 32 at [21]- [26]. The Applicant bears the onus in stay proceedings and the paramount consideration in the exercise of the Tribunal's discretion is the protection of the health and safety of the public. Other relevant considerations in the exercise of the Tribunal's discretion may include: whether the Applicant's case is reasonably arguable, the strength of any grounds put forward by the Applicant, and whether not granting the stay would render the Tribunal's proceedings nugatory. An assessment of the balance of convenience is also required.
9. Beyond submissions as to her personal financial circumstances, the Applicant provided no evidence relevant to the issue of a stay and has not established any factors that weigh in favour of a stay. Whereas, in the context of these review proceedings, the Tribunal considers grant of a stay of the cancellation decision could render the review proceedings nugatory. This is because the substantive review proceedings are to determine whether the Applicant should be permitted to apply to the Council for registration following cancellation and imposition of a three year non-review period. Effectively staying the cancellation decision to allow registration at this point is extremely premature and undermines the substantive proceedings. On that basis and applying the paramount consideration, the Tribunal does not consider the Tribunal should exercise its discretion to grant a stay in these review proceedings.
10. In the event the stay the Applicant is seeking in the stay application is a stay of the substantive review proceedings while she takes some other unspecified actions in another jurisdiction, applying ss 36 and 38 of the NCAT Act, the Tribunal refuses any such application, in part because the Tribunal considers further delay to the substantive proceedings is not justified in the current circumstances. Further, the Tribunal agrees with the submissions of the Respondent that the Applicant has the option to withdraw these proceedings, conduct her intended proceedings in other jurisdictions and make a fresh and further application to the Tribunal for permission to apply to the Council for registration at some time in the future.
11. The Applicant also appears to seek some kind of referral by the Tribunal to another jurisdiction but has provided no basis to ground her contention such a course is within power, neither that it could be appropriate. While the stay application referenced the Supreme Court, in oral submissions at the hearing the Applicant also referred to the District Court and the Local Court. The substantive review proceedings are not proceedings to which s 54 of the NCAT Act applies as no question of law has arisen. In all the circumstances, the Tribunal does not consider the Tribunal could or should make any referral of the nature requested by the Applicant.
12. It follows the stay application was refused.

1. The orders sought under the miscellaneous application appear to seek removal of the Respondent as a party, and substitution of the Tribunal as the Respondent to the proceedings on the basis the Tribunal made the orders of 17 November 2022 that cancelled the Applicant's registration, among other orders. The Respondent opposes the miscellaneous application.
2. Section 163C(4) of the National Law relevantly provides:

A Council and the Commission are entitled to appear at any inquiry conducted by the Tribunal under this Division.

1. The Respondent is therefore entitled to be a party to the proceedings. The Tribunal does not consider the Applicant has established any proper basis to ground a consideration that the Respondent's removal as a party to the proceedings would be appropriate in the circumstances.
2. It is also not appropriate for the Tribunal to be a party to these review proceedings, as that could endanger the impartiality of the Tribunal: see R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13. This is particularly the case in the context of review proceedings where the Tribunal made orders to both cancel and impose a non-review period on the Applicant's registration.
3. It follows the miscellaneous application was refused.

1. The power of the Tribunal to direct the Registrar to issue a summons is provided in s 48(1)(b) of the NCAT Act.
2. The Tribunal is required "to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible" (s 3(d) of the NCAT Act), and its practice and procedure "should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings" (s 36(4) of the NCAT Act).
3. The Tribunal is not bound by the rules of evidence (subject to natural justice) and may determine its own procedure (ss 38(1) and (2) of the NCAT Act).
4. Those are matters that must be considered: by the Registrar at first instance in determining whether to accept the application to issue a summons; as well as by the Tribunal when considering whether to direct the Registrar to issue a summons.
5. In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 the Court of Appeal set out principals regarding relevance in respect of document production, per Bell P, as he then was (at [65], [69]-[70]) and per Brereton JA (at [89]). In icare v Webb [2023] NSWCATAP 192 at [39] the Appeal Panel considered those principles applied equally to a summons to a potential witness to provide evidence.
6. The Appeal Panel summarised relevant considerations for the grant of leave to issue a summons in Lonsdale v University of Sydney [2015] NSWCATAP 277 at [25]- [26], citing White v Carlton Tow Bars Pty Ltd [2014] NSWCATAP 36.
7. The principles to apply when considering whether to issue a summons were summarised in Jali Local Aboriginal Land Council v Anderson [2024] NSWCATOD 197 at [15] as follows:

"...(1) There must be some legitimate forensic purpose to justify the issuing of a summons. The apparent relevance to the underlying proceedings and the reasonable basis upon which it is said the documents may assist must be identified.

(2) Particularly where there is a question over the relevance of the documents, the summons must not be too wide.

(3) A subpoena (and it follows, a summons) is oppressive when its terms are so wide that the task imposed on a stranger to collect and produce documents (many of which may lack relevance) is onerous.

(4) A summons that seeks a large number of documents of doubtful relevance may be regarded as oppressive.

(5) A party is not entitled to a summons for the purpose of "fishing", such as, to ascertain whether they have a case, or to discover the nature of the other side's evidence. As noted in McLaughlin v Dungowan Manly [2009] NSWSC 1501, even where documents are identified with specificity, there must be a basis to suggest documents of that kind exist, to satisfy the legitimate forensic purpose test: at [34]-[35].

(6) A subpoena (and no doubt a summons) not issued for a legitimate forensic purpose is an abuse of process.

(7) The power to set aside a subpoena (and it follows, a summons) for an abuse of process as part of the Court's (and it follows, a Tribunal's) general power to regulate and protect its own processes, is not restricted to defined and closed categories.

(8) In Blacktown, the Court identified that it was sufficient to justify a subpoena as having been issued for a legitimate forensic purpose if there is a reasonable basis, beyond speculation, that it is likely that the documents will materially assist on an identified issue: at [65], [80], [89], [98]. It is not necessary to demonstrate that the documents sought would materially assist the issuing party's case: at [21], [86], [90], [96]. The question is whether the documents will add in some way to the relevant evidence; even if to provide a legitimate basis for cross-examination, or if they go to credit, irrespective of admissibility: at [40], [61], [62], [89], [98], [100]." (citations omitted)

1. The principles identified above were applied by the Tribunal when considering whether to direct the Registrar to issue the summonses. A summons must have a legitimate forensic purpose and be apparently relevant to the proceedings. A summons must not constitute a fishing expedition, be oppressive or an abuse of process.
2. The issues to be determined in the substantive review proceedings relate essentially as to whether the Tribunal should grant permission for the Applicant to apply to the Council for registration as a nurse.
3. The Respondent summons application seeks the following documents as identified in the Schedule:

"1. The Health Care Complaints Commission to produce confirmation of the applicant's nursing registration affected by cancellation and reregistration seeking reinstatement from the regulator, AHPRA.

2. What information supplied to the regulator from the Health Care Complaints Commission to indicate a cancellation of the applicant's nursing registration was ought to take effect from prohibition order/s made in the Tribunal and or otherwise the applicant's cancellation of nursing registration license?

3. The Health Care Complaints Commission to assist in the order request made by the applicant on 23.12.2025 as to what power does the NCAT have to review the prohibition order in NCATOD,more especially the request to the inquiry into the review for the prohibition order made?

4. From the Outline of submissions on behalf of the Health Care Complaints Commission filed 10 February 2026, the Health Care Complaints Commission is requested to submit its evidence for arguments, more especially at order number 6. of the 23.12.2025 application, the submission fails to respond adequately to section 4 of the HCCC Act 1993.

5. Ms. Petrie, to assist in the arguments as to the two orders under review and each order is required to be subject to an inquiry, transparency is requested from the applicant's end in the deliberations of facts in the matter/s complained about."

1. The documents listed above do not appear to relate to the issue of whether the Tribunal should, following expiry of the non-review period of three years, grant permission for the Applicant to apply to the Council for registration as a nurse. The Tribunal therefore cannot not be satisfied there is a legitimate forensic purpose in the documents sought under the Respondent summons.
2. The AHPRA summons application seeks the following documents as identified in the Schedule:

"1. AHPRA- Australian Health Practitioner Regulatory Authority to give to the Tribunal all materials relevant to the applicant's cancellation of her license to practice as of 17 November 2022 to date

2. The applicant requests a confirmation and clarification from AHPRA in writing as to the applicant's cancellation did take effect and on what grounds and from what evidence supplied and by who or which organization?

3. The Director of Registrations to confirm in writing as to the materials supplied in this schedule is authentic and transparent across all states in Australia.

4. In response to prohibition order made against the applicant, requested by the Health Care Complaints Commission, can AHPRA table the evidence supplied in making the prohibition order?"

1. The documents listed above do not appear to relate to the issue of whether the Tribunal should grant permission, following expiry of the non-review period of three years, for the Applicant to apply to the Council for registration as a nurse. The prohibition made in 2022 has expired and is not relevant to the substantive review proceedings.
2. Further, as noted by the Respondent in oral submissions, while the Applicant seeks a document in the nature of a certificate of cancellation, the cancellation of the Applicant's registration as a nurse occurred by operation of the Tribunal's orders of 17 November 2022 and therefore such a document does not appear likely to exist.
3. The Tribunal cannot not be satisfied there is a legitimate forensic purpose in the documents sought under the AHPRA summons because the documents have no demonstrated relevance to the proceedings.
4. The Council summons application seeks production of the following documents as identified in the Schedule:

" 1. What document, thing/s relied upon to have referred a complaint to the Health Care Complaints Commission on 10 September 2020 against Health Practitioner, Sharmain Daisy Clarke?

2. What document, thing/s relied upon by the Nursing and Midwifery Council NSW to have prevented consenting to an application in making party to the proceedings, affected otherwise; under the interpretation of potential breaches of the Constitution, in original application filed by the Health Care Complaints Commission NSW on 15 October 2021?"

1. The documents listed above appear to relate to the original proceedings resulting in the cancellation of the Applicant's registration, for which appeal pathways have been exhausted and are matters specifically excluded from the substantive review proceedings under s 163C(2) of the National Law. The documents do not appear relevant to the issue of whether the Tribunal should grant permission, following expiry of the non-review period of three years, for the Applicant to apply to the Council for registration as a nurse and therefore no legitimate forensic purpose has been established.
2. Further, the Applicant did not demonstrate that the officer to whom the Council summons is directed is able to provide evidence relevant to the matters in issue in the substantive review proceedings. The Tribunal therefore could not be satisfied there is a legitimate forensic purpose in requiring the officer of the Council to appear and give evidence in the substantive review proceedings.
3. As a result, in all the circumstances, the Tribunal declined to direct the Registrar to issue the summonses.

1. On 30 March 2026, following an application from the Respondent for costs, the Tribunal reserved costs of the interlocutory matters. No order to that effect was issued at the time. The Tribunal's orders will be amended under s 63 of the NCAT Act to reflect the omitted order reserving costs.

1. The following orders and procedural directions were made on 30 March 2026:

(1) The applicant's application for stay or interim order lodged 23 December 2025 is refused.

(2) The applicant's application for miscellaneous matters lodged 30 December 2025 is refused.

(3) The Tribunal declines to direct the Registrar to issue the summonses (for which the applicant applied for summonses to issue on 20 February 2026 and 23 December 2025) pursuant to s 48(1)(b) of the Civil and Administrative Tribunal Act 2013.

(4) The applicant is to give to the respondent any material it relies on in the substantive proceedings, including evidence and submissions, on or before 11 May 2026.

(5) The respondent is to give to the Tribunal and the applicant any material it relies on in the substantive proceedings, including evidence and submissions, on or before 22 June 2026. The material provided in accordance with this order must be provided to the Tribunal as 5 hardcopies and electronically on 4 USBs.

(6) The applicant is to give to the Tribunal and the respondent any material it relies on in reply in the substantive proceedings on or before 20 July 2026. Also on 20 July 2026 the applicant is to give to the Tribunal: 5 hardcopies of and electronically on 4 USBs electronic copies all material filed by the applicant in the proceedings.

(7) On or before 27 July 2026 the parties are to notify each other of the names of any witnesses required for cross examination.

(8) On or before 27 July 2026 the parties are to provide the Tribunal with an agreed draft Hearing Plan. If the parties cannot agree, they are to notify each other and the Tribunal of their proposed Hearing Plan. Any draft or proposed Hearing Plan should include details of the following:

(i) The date and time when witnesses are likely to be called and the likely length of their cross examination.

(ii) If expert witnesses have been instructed, whether there is to be a conclave of experts or whether the experts will be giving their evidence sequentially and the likely length.

(iii) Time needed for opening and closing oral submissions.

(iv) Any other matters that are likely to influence the length of the hearing.

(9) The proceeding is listed for hearing on 3 August 2026 at 10:00 am at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney for 3 day(s).

(10) Note: Following orders made on 25 March 2026, a hearing of the applicant's interlocutory applications occurred today. The Tribunal refused the applicant's interlocutory applications and has set a timetable to hearing for the substantive proceedings.

1. Pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 the orders above are amended to insert the following order 11:

(11) The costs of the following matters are reserved:

(a) The preliminary hearing on 30 March 2026;

(b) The applicant's application for stay or interim order lodged 23 December 2025;

(c) The applicant's application for miscellaneous matters lodged 30 December 2025; and

(d) The applicant's three applications for summonses to issue of 20 February 2026 and 23 December 2025.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.