Dr Hill v Health Care Complaints Commission - [2021] NSWSC 1645 - NSWSC 2021 case summary — Zoe

NSWNSWSC

Dr Hill v Health Care Complaints Commission

[2021] NSWSC 1645

Supreme Court of NSW|2021-03-16|Before: Simpson AJ, Commission J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2021-03-16

Before

Simpson AJ, Commission J

Catchwords

[1980] HCA 48 Campbelltown City Council v Vegan (2006) 67 NSWLR 372
[2006] NSWCA 284 Craig v South Australia (1995) 184 CLR 163
[1996] HCA 44 House v The King (1936) 55 CLR 499
[1996] HCA 46. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Source

Original judgment source is linked above.

Catchwords

[1980] HCA 48 Campbelltown City Council v Vegan (2006) 67 NSWLR 372[2006] NSWCA 284 Craig v South Australia (1995) 184 CLR 163[1996] HCA 44 House v The King (1936) 55 CLR 499[1996] HCA 46. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24[1986] HCA 40 Minister for Immigration v Li (2013) 249 CLR 332[2013] HCA 18 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1[2013] NSWCA 383 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480

Judgment (27 paragraphs)

[1]

Background facts

The following facts I take (for the purposes of this application at least) to be uncontroversial.
The plaintiff is a registered medical practitioner, practising as a specialist anaesthetist. As at November 2018 he held accreditation with a number of Sydney hospitals. On 15 November 2018 he was engaged to administer an anaesthetic to a male patient undergoing a colonoscopy and rectal biopsy by a colorectal surgeon at a major hospital. During the course of the surgery an incident occurred that is the genesis of the present proceedings. To a large extent what occurred is not in contest. Some details, however, are disputed. The factual dispute does not need to be, and cannot be, resolved in this proceeding.

[2]

The facts on which the complaint was based

Although there is general consensus as to what took place in the theatre, there has, as yet, been no determination as to those details of the event that are disputed. It is necessary to go to the evidence given to the Medical Council and the Tribunal.
For the purposes of the proceedings in the Tribunal two nurses who had been present in the operating theatre at the time of the incident provided statements and gave oral evidence. I will not identify the nurses by name.
Nurse One was "the scout nurse" for the procedure on the patient. In an affidavit filed in the Tribunal Nurse One gave an account of the preparation for the procedure and said that the surgeon was unable to complete the procedure and that he then said to the plaintiff: "Put on your gloves and have a feel of the tumour. It's a once in a lifetime opportunity." Nurse One said that she heard both doctors giggling but that, although she thought this was "strange" and unusual, she said nothing at the time. She said that she then saw the plaintiff put one or two fingers into the patient's rectum and heard, again, both doctors "giggling".
Nurse One then said that she saw the surgeon holding a mobile telephone trained on the patient, taking photographs of the patient with the plaintiff's fingers in his rectum. She said that she heard the surgeon say that he was going to send the photographs to the plaintiff's "anaesthetic mates".
Nurse One said that, at least three times, she asked the surgeon and the plaintiff to stop what they were doing as it was inappropriate. Nurse One's oral evidence to the Tribunal was to the same effect.
Nurse Two was the "scrub nurse" for the procedure. Her affidavit evidence was that the surgeon invited the plaintiff: "…to have a feel of this tumour - you won't feel anything like it again."
Nurse Two said that the plaintiff put on gloves and commenced an examination by putting his fingers into the patient's rectum. She said that the surgeon took out his mobile phone and said: "We finally have evidence of you doing work … maybe we should send this to … ."
Nurse Two said that the plaintiff responded with "a noise like a giggle" although he was not laughing at the situation of the patient. She said that the plaintiff told the surgeon that what he was doing was not funny and to put the phone away. She said that she remembered clearly that the plaintiff was "not impressed" when the surgeon produced the telephone. She said that she and Nurse One both asked the surgeon to put the phone away, and not take photographs.
In his evidence to the Medical Council inquiry the surgeon recounted the events and attributed to the plaintiff a remark: "You know I chose anaesthetics so I would not have to do this."
The plaintiff's first account of the events in question was contained in a letter dated 28 November 2018 from his solicitors to the Chief Executive Officer of the hospital, apparently in response to a requirement that he "show cause", presumably in relation to a contemplated termination of his accreditation as an anaesthetist at the hospital (the letter from the hospital is not in evidence).
The solicitors said that the surgeon asked the plaintiff to examine the tumour. He had done this many times in his career as an emergency practitioner and was medically interested. He did not believe that the request was unusual as the tumour was a rare example. He was under the impression that the surgeon wanted "another impression of the lesion".
The solicitors said that the plaintiff was unaware that the surgeon intended to and did produce a mobile telephone until he heard the surgeon make a comment about a photograph. He was unaware if a photograph was taken but felt uncomfortable about the comment that he took as a joke.
The solicitors said that the plaintiff denied that a nurse told him to stop the examination or made any comment about the appropriateness of the examination. The solicitors said that the plaintiff did not believe at the time that the request to examine the patient was unprofessional or in breach of any ethical standards. He was an experienced medical practitioner with significant experience in emergency medicine.
The plaintiff's next response was in a statement made on 1 March 2019 for the Medical Council inquiry. He said that the surgeon asked him to examine the tumour and that, although he was initially hesitant and reluctant, the surgeon was insistent, saying words to the effect that it was "the opportunity of a lifetime". He did not, at the time, view the request as "particularly out of context". He said that he therefore proceeded to put on gloves and conduct a rectal examination. At no time did he hear any nurse voice her disapproval or ask him to stop. He said that had he heard anything to that effect he would immediately have stopped.
The plaintiff repeated that he was unaware of the production of the mobile telephone. He was uncomfortable and embarrassed and was "literally stunned" by the conduct of the surgeon who, it was evident, was amused by the whole situation. He said that he did not see the incident as funny or humorous and certainly did not view it as a joke.
The plaintiff went on in his statement to say that he had reflected extensively on the incident since the complaint of his conduct was first brought to his attention (on 27 November 2018). He "wholeheartedly accept[ed]" that his examination was "totally wrong and unjustifiable", against the scope of his practice as an anaesthetist, and provided no clinical benefit to the patient who would be likely to consider it a breach of clinical trust. He withdrew his earlier reliance on his previous expertise in emergency medicine as "completely irrelevant" and providing no justification for his actions.
The plaintiff also provided an affidavit for the purpose of the proceedings in the Tribunal. He referred in detail to the affidavits of the two nurses. He denied that he had "giggled".
All of this material was available to the Commission in its consideration of which of the courses of action available under s 39(1) should be taken.
To facilitate its investigation, on 25 November 2019, pursuant to s 30 of the HCC Act, the Commission sought the expert advice of a specialist anaesthetist. It asked the specialist to provide an opinion, with respect to each of 8 specific issues, as to:

the standard reasonably expected of a practitioner of an equivalent level of training or experience to the plaintiff applicable at the time of the conduct;
whether the plaintiff's conduct fell, or did not fall, below the standard expected of a practitioner of an equivalent level of training or experience; and
if the expert was of the opinion that the plaintiff's conduct did fall below the relevant standard, whether the departure was significantly below that standard. The Commission invited the specialist to provide an opinion on any other aspect of the plaintiff's conduct that the specialist considered relevant. For the purpose of the opinion the Commission provided the specialist with a very large amount of documentation, including the evidence referred to in the preceding section of these reasons.

[12]

Issue 9 (any other aspect of the plaintiff's conduct considered relevant)

The expert referred to the plaintiff's evidence before the Medical Council and considered that it was "understandable" that the plaintiff may have had a clinical interest in performing the examination upon request by the surgeon. The expert concluded: "I am not critical of [the plaintiff] for his performance of the rectal examination, but of his demeanour in performing the examination, if it was not done with due respect to [the patient]. All other components of the anaesthetic appear to have been performed with due deference to [the patient's] dignity."
By s 40(1) of the HCC Act the Commission was obliged, before taking the step of referring the complaint to the Director of Proceedings, to inform the plaintiff of what it proposed to do, and the substance of the grounds for the proposed action, and to give the plaintiff the opportunity to make submissions.
By letter dated 5 February 2020 ("the s 40(1) letter") the Commission notified the plaintiff that it was "at the end of the investigation" of the complaint, that the evidence indicated that his conduct was below the standard reasonably expected of a practitioner of an equivalent level of training or experience in a number of respects, and that, therefore, it proposed to refer the matter, under s 39(1)(a) of the HCC Act, to the Director of Proceedings for determination whether to prosecute a complaint before "a professional disciplinary body" ie the Tribunal.
The "grounds for proposed action" were stated as: "(1) Expert opinion Please note that the expert was of the opinion that your conduct in the following respects fell significantly below the standard reasonably expected of a practitioner of your experience and training: 1. Your conduct in giggling whilst preparing to conduct the digital examination on [the patient] 2. Your conduct in making the comment "You know I chose anaesthetics so I would not have to do this" whilst performing the digital examination … 3. Your failure to respond to [objections by the 2 nurses] to the digital examination … Please note that the expert was of the opinion that your conduct in the following respect [sic] fell below the standard reasonably expected from a practitioner of your experience and training 4. Your failure to obtain the appropriate consent from [the patient] to conduct a digital rectal examination 5. Your conduct in performing a digital rectal examination on [the patient] without a valid clinical reason. 6. Your conduct in acting outside your area of clinical practise [sic] by performing a digital rectal examination. 7. Your conduct was improper and unethical … ." (bold and underlining in original) The letter concluded by inviting the plaintiff to make submissions. A copy of the expert report was provided.
On 3 March 2020, solicitors acting for the plaintiff provided a detailed response to the notification. The solicitors annexed to the response the two judgments of the Tribunal to which I have referred above.
The Commission was then obliged, by s 41(1), to notify the plaintiff and the Medical Council in writing of the results of the investigation, the action taken under s 39 and the reasons for taking that action, and to include advice (not here relevant) that the complainant may ask the Commission to review the decision.
By letter dated 19 March 2020 (which, it was not in issue, was received by the plaintiff on 3 April 2020) the Commission notified the plaintiff that it had finalised the investigation and had, following consultation with the Medical Council, decided to refer the complaint, pursuant to s 39(1)(a) of the HCC Act, to the Director of Proceedings to determine whether a complaint should be prosecuted before a disciplinary body ("the s 41(1) letter"). The s 41(1) letter was said to be "further to the [Commission's] letter to you of 5 February 2020" (the s 40(1) letter) and said: "The Commission has finalised the investigation of this complaint and the evidence supports a finding that your conduct was below the standard reasonably expected of a practitioner of an equivalent level of training and experience in a number of respects".
The s 41(1) letter made no reference to the extensive submissions that had, under s 40(1), been provided on the plaintiff's behalf. The decision to refer the complaint to the Director of Proceedings has been referred to in this application as "the referral decision". It is the first decision the subject of the summons.
It is apparent that the Director of Proceedings determined under s 90B(1)(a) of the HCC Act that the complaint should be prosecuted in the Tribunal by the Commission. On 9 July 2020 the Commission filed in the Tribunal an "Application for disciplinary findings and orders" and Complaint. It alleged that the plaintiff had been guilty of unsatisfactory professional conduct within the meaning of s 139(1)(l) of the National Law, and/or professional misconduct within the meaning of s 139E thereof. The Complaint alleged that the plaintiff had "engaged in improper or unethical conduct relating to the practice or purported practice of medicine" and particularised the conduct as follows: "On 15 November 2018, the [plaintiff] inappropriately conducted a digital rectal examination of Patient A in circumstances where the examination occurred: (a) whilst Patient A was under anaesthesia and without his knowledge or proper informed consent; (b) without a valid clinical reason; (c) by the [plaintiff] engaging in conduct outside the scope of clinical practice."
The decision by the Director of Proceedings to prosecute the complaint in the Tribunal has been referred to in this application as "the prosecution decision". It is, as indicated at the outset of these reasons, the second decision of which the plaintiff seeks judicial review.
On 1 October 2020, by notice served on the Commission pursuant to UCPR r 59.9, the plaintiff required the Commission to provide a statement of reasons for the referral decision, and for the prosecution decision.
By letter dated 22 October 2020, in response to the UCPR 59.9 notice, the Commission provided a Statement of Reasons for the referral decision. No reasons were given for the prosecution decision. The statement of reasons was signed by Mr Tony Kofkin, ("Executive Director Complaints Operations"), who, the statement makes clear, was the decision-maker.
An appendix to the statement of reasons listed the documentation Mr Kofkin had available to him when making his decision. The appendix does not include the plaintiff's s 40(1) submissions. Nevertheless, Mr Kofkin said that he had carefully considered the submissions. He said that it was not in dispute that the plaintiff had conducted a digital rectal examination for which the patient had not given consent. He said that there was no clinical reason for the examination, that it was of no clinical benefit, that the evidence indicated that the reason for the examination was the statement by the surgeon that "it was the opportunity of a lifetime" to feel the size of the tumour, and that the patient was under anaesthetic during the incident and "highly vulnerable". Mr Kofkin was therefore of the opinion that there was sufficient evidence to refer a complaint of improper and unethical conduct to the Director of Proceedings.
Mr Kofkin went on to refer to the witness statements of the two nurses in the Tribunal proceedings, with specific reference to the evidence of one of the nurses that she heard both the surgeon and the plaintiff "giggling", and to the evidence of the nurses' intervention. Mr Kofkin described both nurses as credible witnesses who had a good working relationship with both doctors, and observed that the nurses were advocating for the rights of the patient and raising legitimate conduct issues.
Mr Kofkin concluded, after considering the expert report, that there was sufficient evidence to refer Grounds 1 and 3 (as stated in the s 40(1) letter) to the Director of Proceedings. (Ground 1 was the allegation that the plaintiff "giggled"; ground 3 was the allegation that the plaintiff failed to respond to the objections by the nurses).
Mr Kofkin relied on the evidence of the surgeon, given in the Medical Council as the basis for the referral of Ground 2 (that the plaintiff had commented that he had chosen anaesthetics so that he would not have to "do this"). After considering the expert opinion, and the "totality of the evidence" he was of the opinion that there was sufficient evidence to refer Ground 2 as stated in the s 40(1) letter to the Director of Proceedings.
Mr Kofkin said that he considered that the conduct was serious and may amount to unsatisfactory professional conduct or professional misconduct.
Mr Kofkin noted that, following consultation with the Medical Council pursuant to s 39(2) of the HCC Act, the Medical Council concurred with the proposed action.
None of the three grounds identified by Mr Kofkin was reflected in the Application and Complaint filed in the Tribunal, the particulars of which have been set out at [78] above.

[15]

The grounds of the application

The plaintiff pleaded that each decision was attended by error of law on the face of the record and/or jurisdictional error. The errors asserted (numbered and restated as in the written submissions) are: As to the referral decision:

failure to provide reasons (or adequate reasons) as required by s 41(1) of the HCC Act (Grounds 1 and 2);
application of the wrong test or asking the wrong question in undertaking the statutory task under s 39(1) of the HCC Act (Ground 3);
failure to take into account relevant considerations and taking into account irrelevant considerations (Ground 4).
irrationality and illogicality in adopting inconsistent evidence given by one of the nurses in the Tribunal (Ground 5);
making a decision that "lacks an evident and intelligible justification and is irrational and illogical as it purports to be based on an expert report that does not support the conclusion upon which the decision was based" (Ground 6);
making a decision that is so unreasonable that no reasonable decision-maker could have made it (Ground 7).

Ground 4 was not pleaded in the summons. In written submissions filed on 19 February 2021 the plaintiff sought leave to rely on it as an additional asserted error. It was incorporated in a subsequently filed amended summons, leave to rely on which was sought.
The basis for this ground, it was asserted, came to light only after the Commission, in response to the request under UCPR r 59.9, provided reasons for the referral decision. Objection to this amendment was taken in the Commission's written submissions on the basis that the proposed ground is without merit. Since the ground arises only out of the Commission's very late provision of reasons for the referral decision, and no prejudice was asserted, I allow the amendment.
As to the prosecution decision, the errors asserted are:

misconstruction by the Director of Proceedings of the statutory task required by s 90B, or misdirection with respect to that task; and
that the decision to prosecute was so unreasonable that no reasonable decision-maker could have made it.

The plaintiff also asserted that to continue the proceedings in the Tribunal would constitute an abuse of process. He claimed that s 23 of the Supreme Court Act provided the necessary jurisdiction to this Court to intervene to prevent abuse of process.

[16]

Grounds 1 and 2: Reasons

Grounds 1 and 2 of the application concern the reasons given by the Commission for the referral decision. Ground 1 asserts failure, contrary to s 40(1) of the HCC Act, to provide reasons; ground 2 asserts failure to provide adequate reasons, sufficient to enable the plaintiff to identify whether the Commission considered his submissions, the facts relied on (for the decision), and the evidence said to support those facts.
The only reason given to the plaintiff for the referral decision in the s 41(1) letter of 19 March 2020 was that: "…the evidence supports a finding that your conduct was below the standard reasonably expected of a practitioner of an equivalent level of training and experience in a number of respects." This was the notification upon which the Commission relied as conveying the reasons required by s 41(1). The letter made no reference to the detailed submissions made on the plaintiff's behalf. The plaintiff contends that the letter failed to give reasons for the referral decision, or, to the extent that it could be said to have given reasons, that they are inadequate.
One argument advanced in support of these grounds on behalf of the plaintiff may be disposed of summarily. It was that reasons are required to be sufficient to permit the exercise of a right to seek review (in the Commission) of the decision. That argument exposes a misreading of s 41(3), by which the Commission must review a decision if asked to do so by the complainant (but not by the medical practitioner in question).
Other arguments presented on behalf of the plaintiff are of more substance. The requirement for reasons to be provided for a decision to refer a complaint to the Director of Proceedings presents the only statutory opportunity for a health practitioner the subject of a complaint to obtain reasons for any decision made in the process from assessment to prosecution in the Tribunal. There is no equivalent provision with respect to a decision by the Director of Proceedings to prosecute a complaint in the Tribunal. Accordingly, s 41(1) is the only mechanism by which a health practitioner is entitled to information about the reasons for the decision.
The third argument was based on s 3A(5B)(b) of the HCC Act which states, as a principle to which the Commission must have regard, that: "the decision making processes are to be open, clear and understandable for clients and health service providers".
That, also, is problematic for the plaintiff. Subs (6) of s 3A states that the section is explanatory only and "does not affect any other provision of the Act". The implications of that subsection are unclear to me.
The final argument was that the (potential) consequences of a decision to refer a complaint to the Director of Proceedings are "very serious", and that a health practitioner the subject of such a decision is entitled to know (and to be able to evaluate) whether the decision was made according to law. So much may be accepted.
On behalf of the Commission a number of reasons were advanced for the propositions that there was no obligation to provide reasons, or, to the extent that there was such an obligation, that the reasons that were given were adequate. So that the Commission's submissions can be clearly understood, I will set out s 41(1) of the HCC Act in its entirety: "After the Commission has complied with section 39 and any requirement under s 40, it must notify the parties to the complaint and the appropriate professional council, in writing, of the results of the investigation, the action taken under section 39 and the reasons for taking that action and include advice that the complainant may ask the Commission to review the decision made under section 39."
First, it was submitted that, properly construed, s 41(1) of the HCC Act "does not require the Commission to provide 'substantive reasons'"; it merely requires the Commission to identify "the basis" on which the Commission took the action under s 39(1) that it did. It was then submitted that what is imposed by s 41(1) is "not an independent obligation to provide reasons". Support for this proposition was purportedly drawn from the language of s 41(1) which, it was contended, is a "composite expression" of matters in respect of which notice is required to be given. Support for that latter proposition was, in turn, purportedly drawn from the heading to s 41 ("Notification of results of investigations and review of decisions"), which, it was submitted, could, by s 34(2)(a) and s 35(2)(a) of the Interpretation Act 1987 (NSW), be taken into account in the construction of s 41.
I do not accept any of these submissions. The first and second are contrary to the plain words of s 41(1), which requires notification to the parties to the complaint of four things: (i) the results of the investigation; and (ii) the action taken under s 39(1); and (iii) the reasons for taking that action; and (iv) advice that the complainant may seek review of the decision.
The mere fact that the four requirements are expressed in a single subsection does not give precedence (or subservience) of any one over (or to) any other. Nor does it diminish the importance of any of the requirements. Reasons for a decision under s 39(1) are a statutory requirement.
Reliance on s 34(2)(a) and s 35(2)(a) of the Interpretation Act was misplaced. Section 35(2)(a) specifically provides that headings to a provision in an Act (other than headings to Chapters, Parts, Divisions or Schedules) are taken not to be part of the Act. However, s 34 permits the use of: "2(a) all matters not forming part of the Act that are set out in a document containing the text of the Act as printed by the Government Printer" in the interpretation of a provision of an Act for the specific purposes identified in subs (1). In short, those purposes are confirmation of the ordinary meaning conveyed by the text of the provision; determination of the meaning of the provision if the provision is ambiguous or obscure; and determination of the meaning of the provision if the ordinary meaning conveyed by the text would lead to a result that is manifestly absurd or unreasonable. None of these circumstances is applicable. The Commission does not rely on the heading to confirm that the meaning of s 41(1) is the ordinary meaning conveyed by the text; to the contrary, it relies on the heading to exclude one part of that text. Nor is s 41(1) ambiguous or obscure, and nor does it, on its ordinary construction, lead to a result that is manifestly absurd or unreasonable.
I therefore reject that submission.
It was also argued that, where the HCC Act elsewhere imposes an obligation to provide "substantive reasons", it does so expressly. Reference was made to s 41B, which requires the Commission, when making certain decisions (for example, to make a prohibition order under s 41A, or to issue, revoke or revise a public statement about a health practitioner), to provide a written statement of the decision. By s 41B(2) the written statement must: "(a) set out any findings on material questions of fact; (b) refer to any evidence or other material on which the findings were based; and (c) give reasons for the decision."
The obligation to give reasons for a s 41B decision is no different to the obligation to give reasons for a s 39(1) decision. The difference in the formatting of the provisions makes no difference to the obligation.
A final argument was that the purpose of s 41(1) is not served by requiring "substantive" reasons. What was meant by "substantive reasons" (as distinct from "reasons") was not explained. The argument was that the Commission's role under s 39(1) is "an interim filtering or 'gatekeeper' exercise"; the Director of Proceedings is ultimately responsible for any decision to prosecute.
I do not accept that the role of the decision-maker under s 39(1) is that of a "gatekeeper", or that the task is one of "interim filtering". The decision-maker under s 39(1) has 6 options available. The task is to make an evaluative judgment of the appropriate way to deal with the complaint, and to select from those options, each of which has significant implications, both for the health practitioner and the complainant. Inherent in a decision to refer the complaint to the Director of Proceedings is a finding that the conduct the subject of the complaint is capable of amounting to unsatisfactory professional conduct or professional misconduct. While the ultimate decision whether or not to prosecute the complaint resides exclusively in the Director of Proceedings, the decision to refer is an important step in the process.
I accept, however, that the referral decision has limited ramifications; it is not, and cannot be, a final decision. It will be necessary to consider this in more detail below.
It was then submitted that, in any event, the s 41(1) letter was sufficient to satisfy the requirement for reasons for the decision, particularly when it is taken to have incorporated the grounds on which the Commission had earlier, in the letter of 5 February 2020 (the s 40(1) letter), notified the plaintiff that it was proposing to refer the complaint to the Director of Proceedings.
I also do not accept any of these contentions. The extent of the obligation to give reasons depends on the construction of the statute by which the obligation is imposed. One consideration is the nature of the function performed by the decision-maker. Another is the objective, in the scheme of the legislation, of requiring reasons to be given. These observations are drawn from the decision of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 ("Wingfoot") at [46], in relation to different legislation but, in my opinion, of general application and, specifically, apposite and adaptable to the HCC Act. The reasons given must "explain the actual path of reasoning" by which the decision is arrived at (Wingfoot at [55]). Failure to meet that standard amounts to error of law on the face of the record.
In Wingfoot the objective, in the context of the legislation there under consideration, was held to be to enable a court to see whether the decision did or did not involve error of law. The High Court saw as relevant the opportunity to seek judicial review by the person whose legal rights are affected by the decision.

[17]

Reasons - conclusions

Prior to the response to the plaintiff's UCPR r 59.9 request for reasons the totality of the reasons given by the Commission for the referral decision was, as set out above, that the evidence supported a finding that the plaintiff's conduct was below the required standard. The evidence on which the conclusion was based was not identified, nor the standard against which the plaintiff's conduct was measured, nor the respect in which it was deficient.
The single sentence in the s 41(1) letter does not meet the description of "reasons" for the decision. It expresses a conclusion without explanation. Moreover, it signally fails to advert in any way to the detailed submissions made on the plaintiff's behalf, something that, in the circumstances, was required. (The Commission did not suggest that the decision-maker was not required to take into account the submissions made). Failure on the part of the Commission to explain its rejection of the plaintiff's submissions effectively nullified his entitlement to make submissions, and his entitlement to reasons that would explain the rejection of those submissions. The s 41(1) letter should have explained why the plaintiff's detailed submissions were rejected.
The decision to refer the complaint to the Director of Proceedings was one of immense significance to the plaintiff. Referral to the Director of Proceedings was only one of six options available to the Commission. It was a course that (apart from referral to the Director of Public Prosecutions, also a course available to the Commission) had the most serious implications for him, exposing him to potential proceedings in the Tribunal. The plaintiff was entitled to a more comprehensive explanation for the decision.
Ground one is made out. That makes it unnecessary to address ground two, but, in case I am wrong about ground one, I would, in any event, uphold ground two and find, for the same reasons, that such reasons as were given were inadequate.
The real question is what flows from that conclusion. On behalf of the Commission it was submitted that, even if error were established, it does not qualify as an error of law on the face of the record or jurisdictional error, one of which is necessary to enliven jurisdiction of this Court under s 69 of the Supreme Court Act. Three reasons were given for the proposition that the failure of the Commission to give reasons did not constitute error of law on the face of the record. Those reasons were given as: (i) that the Commission is not a court or tribunal, and, in any event, did not make an "ultimate determination"; (ii) that "the record" does not ordinarily include the transcript, the exhibits or the reasons for the decision; (iii) that: "Section 41 of the HCC Act does not have the effect that the reasons given in this section 41 Letter then form part of the record for the (separate and earlier) action to refer the complaint to the [Director of Proceedings] pursuant to s 39(1)(a) of the HCC Act, being Referral Action that [the plaintiff] actually seeks to quash".
Each of these submissions was directed to s 69(3) of the Supreme Court Act. Subsections (3) and (4) of s 69 provide: "(3) The jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes, if the Court is satisfied that the ultimate determination of a court or tribunal in any proceedings has been made on the basis of an error of law that appears on the face of the record of the proceedings - (a) jurisdiction to quash the ultimate determination of the court or tribunal, and (b) if the Court determines that, as a matter of law, only one particular determination should have been made by the court or tribunal, jurisdiction to make such judgment or orders as are required for the purpose of finally determining the proceedings. (4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination."
The submissions raise a number of questions, none of which was addressed by the plaintiff's submissions in reply. One such question is whether the Commission is, for the purposes of subs (3), a "tribunal" (certainly it is not a court). In Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383, the applicant sought relief under s 69 of the Supreme Court Act in relation to the refusal of a Supreme Court judge, performing an administrative (not judicial) function, to order an enquiry under Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) into his conviction for drug trafficking. At [75] Basten JA raised the question whether the judge, in exercising the function conferred by that jurisdiction, constituted, for the purposes of s 69(3) and (4), a "court or tribunal', each of which terms, his Honour said, "usually describes a body exercising judicial, or perhaps quasi-judicial, functions". Since the question had not been raised in that case and it was therefore undesirable to seek to resolve it, his Honour considered it appropriate to make declarations under s 65 (sic - ? s 75) of the Supreme Court Act. I was referred to no further authority with respect to whether the Commission, exercising its functions under s 39(1), could be classified as "tribunal" such as to bring it within s 69(3).
In this respect, it is not irrelevant to note that the s 39(1) decision is to be made by the Commission after it has engaged in two anterior steps:

assessment under s 19 to determine which of five further steps stated in s 20(1) should be taken, the first of which is investigation of the complaint; and
(if so decided) investigation, as provided in Div 5. It is at the end of that process that a decision as to which of the actions contemplated by s 39(1) is to be made. At least one of the available options (s 39(1)(a), to refer the complaint to the Director of Proceedings) potentially has significant consequences for the health practitioner concerned. Of even more potential significance is the option to refer the matter the subject of the complaint to the Director of Public Prosecutions.

It is also worth noting that, in other cases, orders consistent with orders in the nature of certiorari have been made in relation to decision-makers that may appear not to be exercising judicial or quasi-judicial functions. In Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 an order was made "setting aside" the certificate of an Appeal Panel of the Workers Compensation Commission. In Insurance Australia Ltd (t/as NRMA Insurance) v Wannous [2020] NSWSC 694 an order was made setting aside the determination of a Claims Assessor made under the Motor Accidents Compensation Act 1999 (NSW) on the basis of inadequate reasons for the relevant decision. The obligation to give reasons in Wannous was implied, the implication being derived from the relevant legislation as a whole, and the process involved.
The very fact that the Commission is required, by s 41(1), to give reasons for a s 39(1) decision is some indication that the legislature intended that the Commission be accountable for its decisions.
The second question that arises in relation to the Commission's arguments is whether the decision of the Commission was an "ultimate determination" such as to come within s 69(3) of the Supreme Court Act. That term, like "tribunal", is undefined. The assumption underlying the argument appears to be that, because the end of the process provided by the HCC Act is (unless the complaint is earlier brought to a conclusion) determination by the Tribunal, the decision by the Commission under s 39(1) is merely a step in the process and not an "ultimate determination". The "ultimate determination" to which s 69(3) refers is the "ultimate determination" of the court or tribunal whose decision is challenged. The Commission's powers of determination cease at the s 39(1) stage. Thereafter, the decision-making power lies with the independent Director of Proceedings (whose decision is nevertheless that of the Commission). The s 39(1) decision is the "ultimate determination" of the Commission.
The Commission's arguments do not persuade me that the failure of the Commission to provide reasons could not constitute error of law on the face of the record.
The answer to the Commission's second argument (that the "record" for the purposes of s 69(3) does not ordinarily include, inter alia, the reasons given) lies in subs (4) of s 69, which expressly includes the reasons as part of the "face of the record". The only "record" of the s 39 decision is the s 41(1) notification, in which the only semblance of a reason was given. It follows then that that notification constitutes "the record" for the purposes of s 69(3). The absence of any reasons constitutes error of law on the face of the record.
In Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 the High Court said that determination of what constitutes "the record" for the purposes of an application for certiorari is ultimately a matter for the court hearing the application. Ordinarily, the record will comprise no more than the documentation which initiates the proceedings and thereby grounds jurisdiction, the pleadings (if any), and "the adjudication". The s 41(1) letter is the only document that constitutes either reasons or adjudication at that stage of the process.

[18]

Ground 4 - failure to take into account relevant considerations; taking into account irrelevant considerations

Somewhat paradoxically, having asserted that the Commission failed to give any reasons for the decision, the plaintiff then asserted that the Commission failed to take into account relevant considerations and took into account irrelevant considerations. In order to support the proposition that the Commission failed to take into account relevant considerations, he relies on the statement of reasons provided on 22 October 2020, after the commencement of these proceedings and in response to his request under UCPR r 59.9 for reasons for the decision. (The plaintiff made no attempt to support the proposition that the Commission took into account irrelevant considerations).
It was acknowledged on behalf of the plaintiff that a ground asserting failure to take into account relevant considerations will succeed only where the considerations said to be relevant and not taken into account are those which are required, either expressly or by implication, by the relevant legislation to be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40.
It was submitted that the Commission was obliged, in its decision, to take into account the findings of the Tribunal in both the interim decision to stay the order for suspension imposed by the Medical Council and the final decision of the Tribunal setting aside that order. The specific findings which, it was submitted, were required to be taken into account were: 1. that the plaintiff undertook the digital rectal examination out of clinical curiosity; 2. that the plaintiff experienced "deep remorse" in relation to his part in the incident and had come to a deeper understanding of his role; 3. that the plaintiff would practise anaesthetics ethically, strictly in accordance with relevant codes of practice and with consideration of the dignity of the patient firmly in mind.
The submission was made that these were mandatory relevant considerations. No basis for that bald assertion was identified and I reject it. There is no basis on which it could reasonably be said that the findings of the Tribunal were mandatory considerations. The exercises undertaken by the Tribunal were quite different to the exercise to be undertaken by the Commission. The decision in question in each Tribunal proceeding was the decision of the Medical Council to suspend the plaintiff's registration as a medical practitioner. To suspend the plaintiff's registration under s 150 of the National Law the Medical Council had to be satisfied that it was appropriate to do so for the health or safety of any person or persons, or that suspension was otherwise in the public interest. The appeal to the Tribunal under s 159 of the National Law being a rehearing (s 159(3)), the question was whether suspension was appropriate for the health or safety of any person, or otherwise in the public interest. The Tribunal was not then concerned with questions of unsatisfactory professional conduct or professional misconduct. The conclusions of the Tribunal on the questions before it on the stay application and the appeal from the suspension decision could potentially have had a bearing on the Commission's decision under s 39(1), but were not such that the Commission was bound to take them into account.
The first Tribunal decision was to stay the operation of the order pending the plaintiff's appeal to the Tribunal. The second Tribunal decision was to uphold the appeal against the suspension order. While there was much overlap in the factual matters relevant to those inquiries, no findings by the Tribunal were binding on the Commission and nor did they impact in more than a marginal way on the s 39(1) decision to be made by the Commission.
By contrast, (and at the risk of repetition) the question for the Commission was which of the 6 courses of action available under s 39 ought to be taken. The question of referral to the Director of Proceedings necessitated consideration of whether the conduct of the plaintiff in question was capable of being characterised as unsatisfactory professional conduct or professional misconduct. That was not an issue for the Medical Council to consider.
It was also submitted that the Commission was obliged to take into account not only matters adverse to the plaintiff, but also matters that were favourable to him. No attempt was made to identify the matters favourable that were not taken into account. It may be gleaned, from other arguments advanced on behalf of the plaintiff, that such matters included minor discrepancies in the accounts of events given by the two nurses, and the plaintiff's denial of some of the asserted facts. If that is what was intended, I reject the argument. The task of the Commission was not to make findings on disputed issues of fact; it was to determine whether, on a view of the facts alleged and reasonably open, the plaintiff's conduct was such as to warrant referral to the Director of Proceedings with the consequence that a decision might be made to prosecute the complaint as either unsatisfactory professional conduct or professional misconduct.
I reject this ground of the application.

[20]

Grounds 5 -7: Irrationality, illogicality and unreasonableness

The plaintiff's argument with respect to these grounds was that the referral decision was irrational, illogical and so unreasonable that no reasonable decision maker could have made it.
The principles on which asserted unreasonableness in decision making is to be evaluated were explained in Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 in the plurality judgment of Hayne, Kiefel and Bell JJ. That evaluation proceeds on the assumption that the legislature intends that a discretionary power, statutorily conferred, will be exercised reasonably (at [62]). It is necessary to recognise that there is an area in which the decision maker has a genuinely free discretion "within the bounds of legal reasonableness". What is legally reasonable is determined by the construction of the statute by which the discretion is conferred and under which it is exercised. Care must be taken to avoid substitution of the court's view as to how the discretion ought to be exercised, provided that it has been exercised within the bounds of legal reasonableness. The standard of legal unreasonableness is not limited to decisions that are so unreasonable that no reasonable decision maker could have made them (the so called "Wednesbury test" - Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223). Ultimately, unreasonableness is a conclusion which may be applied to a decision which "lacks an evident and intelligible justification" (Li, at [76]).
Their Honours recognised an analogy with House v The King (1936) 55 CLR 499; [1936] HCA 40 principles, applicable to appellate review of the exercise of judicial discretion. Some error must be identifiable, such as acting on a wrong principle, taking irrelevant matters into account or failing to take relevant matters into account, or that the result of the exercise of the discretion is a decision that is "unreasonable or plainly unjust".
On behalf of the plaintiff five circumstances alleged to be indicative of unreasonableness were nominated. The first was that the expert briefed to provide an opinion under s 30 of the HCC Act was instructed to prepare the opinion on the basis of the affidavit of Nurse One as to what took place in the theatre, and to ignore the statement of Nurse Two which was more favourable. It is not clear to me on what basis this was said to signify an erroneous or unreasonable approach. As I have mentioned above, resolution of disputed factual issues was not the role of the Commission under s 39(1). It would not be unreasonable to make the decision under s 39(1) on the basis of the version of facts least favourable to the health practitioner concerned.
The second circumstance relied on was that the report of the expert did not support the conclusion. That, it was said, was because the opinion that the plaintiff's conduct fell significantly below the relevant standard was conditional upon the plaintiff's demeanour being less than duly respectful of the patient.
It was entirely appropriate for the expert to express a conditional opinion upon an assessment of the plaintiff's demeanour - an assessment which it was not for the expert or the Commission to make. The opinion was prepared for the assistance of the Commission's decision-maker, but could only be expressed conditionally upon facts the final determination of which the expert could not know. There was no error of principle in the Commission making its decision on the basis of the expert's conditional opinion.
The third circumstance again depends upon an issue of fact: the evidence of the nurses that the plaintiff giggled. For the same reasons, it was not inappropriate for the Commission to proceed on the basis of evidence adverse to the plaintiff.
The fourth circumstance was the statement, attributed to the plaintiff by the surgeon in his evidence to the Medical Council, that the plaintiff said "you know I chose anaesthetics so I would not have to do this".
How, or why, such a comment (if made) constitutes grounds for referral was not explained in the statement of reasons. That it formed part of Mr Kofkin's reasoning process is clear. Reliance on the comment as a ground for referral demonstrates a misunderstanding of the opinion of the expert. The expert did not express any opinion that the comment (assuming that it was made) was of itself inappropriate or indicative of a departure from the appropriate standard; rather, the expert considered that such a comment would contradict any proposition that the plaintiff performed the examination for clinical reasons. So far as the evidence goes, the plaintiff has never suggested that he did undertake the examination for clinical reasons; the nearest he went was to suggest some clinical interest arising out of his previous experience in emergency medicine, a suggestion he later withdrew.
The final circumstance on which reliance was placed was the assertion in the statement of reasons that the plaintiff ignored objections to the procedure he was undertaking by the nurses. The point now made is that Nurse Two said that, although she thought it was strange, she did not initially say anything to stop the plaintiff doing what he was doing; and that the plaintiff denied that he had heard the nurses make any protests. In fact, both nurses said that they asked both the surgeon and the plaintiff to stop what they were doing. This is another example of complaint based on the failure of the decision-maker to base his decision on a version of facts propounded by the plaintiff in circumstances that another version was open. It was not for Mr Kofkin to choose between competing version of facts.
While I consider that Mr Kofkin misunderstood the import of the expert's report with respect to the alleged comment by the plaintiff about the reason he chose anaesthetics as a career, that is insufficient to establish unreasonableness in the decision to refer the complaint to the Director of Proceedings. These grounds fail.

[21]

The prosecution decision

As indicated above, only two grounds for judicial review of the prosecution decision were identified. The first was misconstruction of the statutory task the Director of Proceedings was required to undertake under s 90C(1) of the HCC Act. The second was unreasonableness.
Acknowledging that, as no reasons for the prosecution decision were given (or required to be given) it was difficult for the plaintiff to identify any specific error relating to the statutory task in the decision, in support of the first ground counsel for the plaintiff relied upon what they contended to be the unreasonableness of the outcome. The reality is that the argument was entirely directed to the second ground. Counsel relied on the plurality (Hayne, Kiefel and Bell JJ) decision in Li at [76]: "As to the inferences that may be drawn by an appellate court, it was said in House v The King [(1936) 55 CLR 499; [1936] HCA 40] that an appellate court may infer that in some way there has been a failure properly to exercise the discretion 'if upon the facts [the result] is unreasonable or plainly unjust'. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification."
The criteria to be taken into account by the Director of Proceedings in determining whether a complaint should be prosecuted in the Tribunal are stated in s 90C of the HCC Act and set out above at [26].
The written submissions made on behalf of the plaintiff were taciturn. They were, simply: (i) that no issue of health and safety of the public existed (as the Tribunal in the appeal decision found at [89]); (ii) that the seriousness of the conduct the subject of the complaint was "not within the range of seriousness" to justify prosecution; and (iii) that there was no real prospect of a finding either of unsatisfactory professional conduct or professional misconduct, having regard to the findings of the Tribunal and the conclusions in the expert report.
For many years Australian courts approached questions of unreasonableness in decision making on the basis of the judgment of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation. Since the High Court's decision in Li a different approach is mandated. The ultimate question is whether the decision "lacks an evident and intelligible justification".
I am unable to conclude that the decision of the Director of Proceedings to prosecute the plaintiff in the Tribunal for unsatisfactory professional conduct lacks such a justification. The Council relied on that part of the s 139B definition that declares "any other improper or unethical conduct relating to the practice or purported practice" of medicine to be potentially "unsatisfactory professional conduct" (s 139B(1)(l)). I am unable to conclude, as was submitted on behalf of the plaintiff, that there is "no real prospect" of such a finding.
Ethical standards and the evaluation of professional propriety lie squarely within the realm of the profession concerned. It is no accident that s165B of the National Law requires the Tribunal, when conducting an enquiry or hearing an appeal, to be constituted by one Tribunal member who is a senior judicial officer, one lay person, and two health practitioners selected for appointment by the Medical Council as occasional members. This requirement, no doubt, was intended to introduce into the decision-making process a balance of legal expertise, community standards, and, importantly, professional expertise with respect to the boundaries of professional practice and the ethos of the profession. The decision to prosecute for unsatisfactory professional conduct did not lack an evident and intelligible justification.
I am less comfortable with the decision to prosecute the plaintiff for professional misconduct, when regard is had to the definition of professional misconduct - "unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration". The orders as sought in the Commission's application in the Tribunal encompass, effectively, the whole range of disciplinary measures available to the Tribunal - caution, reprimand, or the imposition of conditions on registration as provided by s 149 of the National Law; a fine, as provided by s 149B; and suspension or cancellation of registration, or a prohibition order (s 149C).
I find it difficult to see any rational warrant for the prosecution of the plaintiff, a medical practitioner in good standing in his profession, on the basis that conduct, over a few seconds, on an isolated occasion, could justify suspension or cancellation of his registration. That synchronises with the view, twice expressed, of the Tribunal in the two previous decisions. The decision to prosecute for professional misconduct finds no support in the expert report, which only to a limited degree was critical of the plaintiff's conduct. There appears to have been little attention paid, in the decision to prosecute for professional misconduct, and in the formulation of the application and the orders sought, to questions of proportionality.
I have come to the conclusion that the decision to prosecute the plaintiff for professional misconduct was legally unreasonable in the sense that it lacked an evident and intelligible justification. The conduct on which the Commission relies, as set out in the Application and Complaint, is not capable of constituting conduct that would justify suspension or cancellation of the plaintiff's registration. It is therefore not capable of constituting professional misconduct.

[22]

Abuse of process

The basis for the contention that the proceedings in the Tribunal are an abuse of process lies in the two previous decisions of the Tribunal in which the suspension order made by the Medical Council was first stayed and then set aside. The contention that the current proceedings are an abuse of process was, essentially, that the proceedings would amount to a relitigation of the previous proceedings.
For the reasons already given, it is not correct, as asserted on behalf of the plaintiff, that the issues already decided by the Tribunal are contiguous with the issues to be presented in relation to the current application and complaint. While the reasons of the Medical Council in deciding, under s 150 of the National Law, to suspend the plaintiff's registration were not provided to this Court, some reference was made to them in the Tribunal's decisions. Section 150 obliged the Medical Council, if satisfied that it was appropriate to do so for the protection of the health or safety of any person or persons, or if satisfied that it was otherwise in the public interest, to suspend the plaintiff's registration. The latter was, it seems, the basis for the Medical Council's decision, there being no suggestion that suspension was appropriate for the protection of the health or safety of any person. The Tribunal decided the appeal under s 159 of the National Law, which provided that the appeal was a rehearing. It stated its task as: "…to determine whether the continuation of the suspension of the applicant's registration as a medical practitioner … is otherwise in the public interest."
It concluded: "77 Our decision in relation to the appeal under s 159 is that the decision of the [Medical] Council to suspend the registration of the applicant as a medical practitioner should be set aside."
That issue is very much narrower than the issues that will arise in the Council's Application and Complaint to the Tribunal and will, on the Application and Complaint as presently framed, include determination of whether the plaintiff's conduct was "improper or unethical" so as to amount to unsatisfactory professional conduct or professional misconduct, and, if so, whether any of the disciplinary sanctions provided for by the National Law, falling short of suspension or cancellation, are warranted.
There is no abuse of process on the basis of relitigation in the Council proceeding of the complaint of unsatisfactory professional conduct, nor, indeed, the complaint of professional misconduct. The decision to prosecute for professional misconduct was unreasonable, but was not an abuse of process for the reason propounded on behalf of the plaintiff.

[25]

The prosecution decision

The decision to prosecute presents a more complex issue. The decision to prosecute for unsatisfactory professional conduct can, in the light of my conclusions above, be put to one side. The consequences of the unreasonableness of the decision to prosecute for professional misconduct need to be considered. The plaintiff seeks an order in the nature of certiorari quashing that decision.
The Commission contends that the decision is not amenable to an order in the nature of certiorari. The availability of certiorari was considered in depth by the High Court in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 ("Hot Holdings"). The majority (Brennan CJ, Gaudron and Gummow JJ) held (at 159) that: "…for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing." That proposition has since been endorsed numerous times by the High Court, including in Wingfoot at [25] and Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 (""Probuild") at [28].
The majority in Hot Holdings then recognised two "broadly typical situations where the requirement of legal effect is in issue". They are: (1) where the decision under challenge is the ultimate decision in the decision-making process and the question is whether that ultimate decision sufficiently 'affects rights' in a legal sense; (2) where the ultimate decision to be made undoubtedly affects legal rights but the question is whether a decision made at a preliminary or recommendatory stage of the decision-making process sufficiently 'determines' or is connected with that decision.
It may be accepted that, if the prosecution decision falls into either category, it is the second. "The ultimate decision in the decision-making process" will be that of the Tribunal, having heard and determined the Council's Application and Complaint. The question is whether the prosecution decision, which is undoubtedly a preliminary stage of the (ultimate) decision-making process, has sufficient connection with the ultimate decision.
Their Honours in Hot Holdings then considered a number of instances in which the principles have been applied. None is directly applicable to or determinative of the present question, but some useful guidance may be identified. The decision in Hot Holdings involved a recommendation as distinct from the presently relevant prosecution decision. By reason of the latter, the Tribunal in this case will be obliged to enquire into and determine the complaint put before it by the Commission. The decision of the Director of Proceedings to prosecute the complaint meant that the plaintiff was exposed to possible consequences which could have serious ramifications for his professional future.
The first relevant case discussed in Hot Holdings is Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 ("Ainsworth"). In that case the plaintiff sought to quash a report prepared by the Queensland Criminal Justice Commission, which contained adverse recommendations about certain individual involved in the poker machine industry. Mason CJ, Dawson, Toohey and Gaudron JJ, in a joint judgment, said at (580): "[the report] has, of itself, no legal effect and carries no legal consequences, whether direct or indirect. It is different when a report or recommendation operates as a precondition or as a bar to a course of action, or as a step in a process capable of altering rights, interests or liabilities" (citations omitted).
The next relevant case is R v Collins, Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471 ("ACTU-Solo"). In that case the applicant sought to quash the report of a Royal Commission into the refining, marketing and pricing of petroleum products in Australia. Stephen J, after considering the reporting function of a Royal Commission, concluded (at 473) that: "The reported conclusions of the Commission no doubt serve to inform the mind of government and may in consequence to a greater or lesser extent be instrumental in shaping the course of future legislative or executive initiatives, but they neither directly determine, or of their own force affect, rights no does the reporting of particular conclusions satisfy some condition precedent to the exercise of power which will in turn affect rights or otherwise give rise to legal consequences."
To the extent that either Ainsworth or ACTU-Solo concerned a "decision" (as distinct from a recommendation) each fell within the first Hot Holdings category - namely, an ultimate "decision" in a decision-making process - and in each case the impugned "decision" was found not to affect legal rights so as to be susceptible to an order in the nature of certiorari. The High Court in Hot Holdings was concerned with a decision falling within the second category, but adopted the tests as set out in Ainsworth and ACTU-Solo directed towards decisions in that category. The majority in Hot Holdings held (at 162) that: "There is no issue taken with the proposition that the [ultimate decision] affects legal rights in the relevant sense. Rather, the issue is whether a decision prior to that final exercise of discretion can be said sufficiently to affect legal rights. Thus, in the words of Stephen J [in ACTU-Solo], one must ask whether there is a decision which constitutes some condition precedent to the exercise of power which will affect legal rights. Alternatively, in the words of the majority in Ainsworth, the preliminary report or recommendation must operate in this situation 'as a precondition or as a bar to a course of action' or 'as a step in a process capable of altering rights, interests or liabilities'."
Counsel for the Commission submitted that the limits of the second category identified in Hot Holdings have been recognised to be "controversial", referring to the decision of this Court in Henroth Investments Pty Ltd v Sydney North Planning Panel [2019] NSWCA 68 ('Henroth'). In that case the Court noted (at [35]) that: "The extent to which a court will set aside an administrative decision which merely provides a recommendation to a decision-maker at a preliminary stage of the decision-making process is controversial."
The prosecution decision in the present case could not be described as merely providing a recommendation to a decision-maker. For that reason, observations concerning the circumstances in which such recommendatory decisions may be subject to certiorari do not assist.
Counsel for the Commission appeared to place weight on the proposition, drawn from Hot Holdings (at 165) that: "[i]f the final decision-making body is not obliged to take the recommendations into account, then certiorari will not lie. … A preliminary decision or recommendation, if it is one to which regard must be paid by the final decision-maker, will have the requisite legal effect upon rights to attract certiorari."
There may be many circumstances in which a report or recommendation is produced by a decision-maker as a preliminary step to an ultimate decision by a different decision-maker. That was the case in Hot Holdings, where the preparation of a report by the Mining Warden was a precondition to the exercise of a discretion by the Minister to grant or refuse an application for an exploration licence or mining lease. The Warden's recommendation was also a mandatory relevant consideration for the Minister in the exercise of that discretion. However, what was being challenged in Hot Holdings (and indeed in Ainsworth and ACTU-Solo) was not the decision to issue a report, but the content of the report.
The present case is not concerned with a recommendation or report. Thus there is no question of whether an ultimate decision-maker is obliged to have regard to the content of any recommendation made by the Director of Proceedings. What is challenged is the decision, under s 90B of the HCC Act, that the complaint against the plaintiff should be prosecuted before the Tribunal.
I have come to the view that that decision has sufficient connection with what will be the ultimate decision to come within the terms of the second category of decisions identified in Hot Holdings, extracted above. There would be no "ultimate decision" by the Tribunal unless the Director of Proceedings had made the decision to prosecute. It was that decision that set in train the proceedings that will, eventually, determine the plaintiff's rights; it is properly described as a precondition to the proceedings in the Tribunal, and constitutes a step in a process capable, ultimately, of altering the plaintiff's rights and interests. No separate question arises as to whether the prosecution decision is a decision to which the Tribunal must have regard; the decision without more exposed the plaintiff to the potential for adverse disciplinary findings. It was, therefore, subject to certiorari.
Counsel for the Commission also referred in their submissions to the decision of the Full Court of the Supreme Court of South Australia in AYHT v Medical Board of South Australia (2000) 77 SASR 148 ('AYHT'). That decision was said to support the proposition that the role of a professional regulatory body in referring a complaint to be prosecuted before a disciplinary body is extremely limited and does not involve the determination of any question which affects the rights or interests of a practitioner.
The decision under consideration in AYHT was analogous to the decision presently before the Court. However, the availability of certiorari in respect of the decision in AYHT was not in issue. Rather, the Court was concerned with whether or not the professional regulatory body in that case was required to accord procedural fairness to a medical practitioner before referring a complaint to the disciplinary body.
Ultimately the Court in AYHT concluded, on the basis of its finding that the decision did not determine any rights or interests of a practitioner, that there was no requirement to accord procedural fairness. The same may be true in the present context of decisions by the Director of Proceedings under s 90B of the HCC Act. However, the existence of an obligation to accord procedural fairness is a different question to whether a decision may be subject to certiorari. For example, it may be within the power of the legislature to exclude any obligations of procedural fairness in certain administrative decisions, but certiorari would still lie to correct a jurisdictional error, such as unreasonableness, provided that the decision had an effect on legal rights of the kind discussed in Hot Holdings.
Even absent express legislative provision, there is no reason to suggest that there cannot be decisions not subject to any requirement to accord procedural fairness but that nonetheless have a sufficient effect on legal rights to attract certiorari for breach of other requirements, such as the implied requirement of reasonableness. A prosecution decision under s 90B of the HCC Act is just such a decision.
The decision of the Director of Proceedings was a precondition to the inquiry in the Tribunal and was an essential step in a process capable, ultimately, of altering the plaintiff's rights and interests. It exposed him to the potential for adverse disciplinary findings. It was, therefore, susceptible to an order in the nature of certiorari.
The availability of certiorari, in a very different context, arose in AB v Judicial Commission of New South Wales [2018] NSWCA 264. The decision was a decision of a Conduct Division appointed under the Judicial Officers Act 1986 (NSW) to enquire into complaints about the conduct of a judicial officer. The Conduct Division determined to hold the hearings in public. The judicial officer sought an order quashing that decision, and an order that the hearing be held in private. An issue was raised by the Attorney-General, who appeared for the purpose of upholding the decision of the Conduct Division, as to the availability of certiorari in respect of what was, in effect, a procedural decision. The Court (Basten, Meagher, and Gleeson JJA) referred to Ainsworth and concluded that "the supervisory jurisdiction of the court" was properly engaged. The supervisory jurisdiction of the court, in the context of that observation, included declaratory relief under s 75 of the Supreme Court Act. Since the Court rejected all arguments of the judicial officer, it was not necessary for it to determine the availability of certiorari as distinct from declaratory relief.
It is necessary to advert to two further considerations. The first is the absence of any statutory requirement that the Director of Proceedings give reasons for the decision to prosecute. It was not suggested that there is any implied requirement for reasons to be given. As explained in Wingfoot, the rationale for the requirement to give reasons is to provide to the person whose rights are affected by the decision the basis of a claim for judicial review. It might be thought that the corollary is that, where there is no requirement for reasons to be given, the decision is not one that is susceptible of judicial review.
The second consideration is the nature of the decision, which might be thought to have some parallels with a decision to prosecute criminally, a decision which, it is well established, is not subject to judicial review: Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46.
The question was raised, peripherally, in the decision of this Court in Hastwell v Health Care Complaints Commission [2021] NSWCA 22. However, as will appear below, there is a marked difference.
Mr Hastwell was a solicitor who made a complaint to the Commission about a psychiatrist who had been retained to provide a report on his psychiatric condition for the purpose of proceedings Mr Hastwell had instigated in the Human Rights Commission. The report was far from supportive of Mr Hastwell. As a result, he made a complaint to the Commission. The Commission, after consideration, declined to take any further action. Mr Hastwell exercised his right under s 41(3) of the HCC Act to require review of the decision. Following review, the Commission maintained its position of taking no further action. Mr Hastwell then sought judicial review in the Supreme Court. He failed. He appealed to this Court. This Court (Leeming JA, with whom Basten and White JJA agreed), found that none of the errors asserted by Mr Hastwell was made out.
In additional observations (with which Leeming JA agreed), Basten JA raised a question about the jurisdiction of this Court. His Honour, speaking of the decision of the Commission not to investigate the complaint further, said: "That judgment is vested in a body which is the statutory authority responsible for maintaining standards of the health care system within the State. Arguably, it is no more subject to the supervisory jurisdiction of this Court than is the police force or a public prosecutor within their areas of operation."
His Honour referred to the authoritative text on administrative law, M Aronson, M Groves, G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed Law Book Co, 2017) pp 869-870. There, referring to disciplinary proceedings within the legal profession, the authors said: "Decisions about the proper classification of conduct must in practice generally lie within the discretion of the relevant regulatory authority, which can take into account matters including the practitioner's past conduct and cooperation with the investigation. The regulator's role is in some respects analogous to that of a prosecutor and should for similar reasons be given a degree of discretionary autonomy from judicial supervision."
Basten JA also referred to the decision of the High Court in Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48 in which Gibbs ACJ with Mason J said: "It is not correct to say that the exercise of every power given by statute is examinable by the court in the manner suggested by the appellants. It is correct to say that in cases where a statute confers an administrative discretion which is unlimited in terms, the court must concede to the repository a discretion unlimited by anything but the scope and object of the statute … ." The statute there in question was s 5 of the Australian Courts Act 1828 (Imp) which authorised the prosecution of criminal offences by information in the name of the Attorney-General.
The discretion to prosecute conferred on the Director of Proceedings by s 90B of the HCC Act was, in one sense, unlimited in its terms; however the exercise of discretion was made subject to the mandatory considerations stated in s 90C. I do not see that discretion as being directly comparable to the discretion conferred on the Attorney-General by s 5 of the Australian Courts Act. Not only are the s 90C considerations mandatory, the HCC Act sets out the complex procedural path to the decision to prosecute.
The very significant difference between the circumstances in Hastwell and those in the present case is that the decision to prosecute affects the plaintiff's rights by exposing him to the substantial potential consequences of a finding of professional misconduct; as Basten JA expressly noted, the decision not to act on his complaint did not in any way affect any rights of Mr Hastwell.
Accordingly, I am of the view, contrary to the submissions of the Commission, that the prosecution decision is amenable to an order in the nature of certiorari.

Parties

Applicant/Plaintiff:

Dr Hill

Respondent/Defendant:

Health Care Complaints Commission

Legislation Cited (6)

Health Care Complaints Act 1993(NSW)s 39(1)(a), s 41(1), s 90B

Interpretation Act 1987(NSW)

Supreme Court Act 1970(NSW)

Crimes (Appeal and Review) Act 2001(NSW)

Motor Accidents Compensation Act 1999(NSW)

Judicial Officers Act 1986(NSW)

Cases Cited (34)

aig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Hastwell v Health Care Complaints Commission [2021] NSWCA 22 Henroth Investments Pty Ltd v Sydney North Planning Panel [2019] NSWCA 68 Hill v Medical Council of NSW [2019] NSWCATOD 52 Hill v Medical Council of NSW [2019] NSWCATOD 97 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 House v The King (1936) 55 CLR 499; [1936] HCA 40 Insurance Australia Ltd (t/as NRMA Insurance) v Wannous [2020] NSWSC 694 Kirby v Health Care Complaints Commission [2021] NSWCA 139 Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 R v Collins, Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471 Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 73; [2013] NSWCA 383 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Category: Principal judgment Parties: Dr Adam Hill (Plaintiff) Health Care Complaints Commission (Defendant) Representation: Counsel: A Moses SC/J Alderson/E Chan (Plaintiff) K Richardson SC/M Pulsford (Defendant)

The legislative context

The legislative context in which each decision was made involves two statutes that are intended to operate in tandem to regulate the practice, conduct and discipline of health practitioners, which term includes medical practitioners. One of those statutes is the HCC Act. The other is the Health Practitioner Regulation National Law (NSW) ("National Law"). There is a degree of overlap, or duplication, in the provisions of the two statutes. Although it is clear that they are intended to operate co-operatively it is not always easy to reconcile the procedures laid down in the two Acts.
The principal focus of the National Law is to be found in s 3 thereof, which states that the object of the National Law is the establishment of a national registration and accreditation scheme for the regulation of health practitioners and students in health professions.
The principal focus of the HCC Act, as its name implies, is on a means of dealing with complaints against health practitioners. So much is stated in the long title of the HCC Act, which includes: "An Act to provide for the making, resolution, investigation and prosecution of health care complaints …"
The primary object of the HCC Act is stated in s 3, as follows: (1) The primary object of this Act is to establish the Health Care Complaints Commission as an independent body for the purposes of - (a) receiving and assessing complaints under this Act relating to health services and health service providers in NSW, and (b) investigating and assessing whether any such complaint is serious and if so, whether it should be prosecuted, and (c) prosecuting serious complaints, and (d) resolving or overseeing the resolution of complaints.
To that end, by s 75 the Health Care Complaints Commission (hereafter "the Commission") is established. By s 76 a Commissioner may be (and presumably has been) appointed.
An "outline" of the "role and principles" of the Commission is stated in s 3A. By subs (2) the Commission is: "… an independent body with responsibility for dealing with complaints under this Act, with particular emphasis on the investigation and prosecution of serious complaints in consultation with the relevant professional councils."
Subsection (5B) of s 3A states six principles to which the Commission and other government agencies are, in carrying out their functions in connection with health care complaints under the HCC Act, to have regard. Principle (b) states that the decision-making processes are to be "open, clear and understandable for clients and health service providers".
Both the HCC Act and the National Law deal with a wide variety of "health professions" and "health practitioners". For the purposes of these reasons it is only necessary to be concerned with the provisions as they apply to the medical profession and medical practitioners.

(1992) 175 CLR 564

(2000) 77 SASR 148

(1980) 147 CLR 75

(2006) 67 NSWLR 372

(1995) 184 CLR 163

(1996) 185 CLR 149

(1936) 55 CLR 499

(1996) 184 CLR 501

(1986) 162 CLR 24

(2013) 249 CLR 332

(2018) 264 CLR 1

(1976) 50 ALJR 471

(2013) 85 NSWLR 73

(2013) 252 CLR 480

(2013) 85 NSWLR 783

Cited By (1)

Health Care Complaints Commission v Hill

Section 90C(1) of the HCC Act states the criteria to be taken into account by the Director of Proceedings in determining whether a complaint should be prosecuted before a disciplinary tribunal (in this case, the Tribunal). Those criteria are: (a) the protection of the health and safety of the public, (b) the seriousness of the alleged conduct the subject of the complaint, (c) the likelihood of proving the alleged conduct, (d) any submissions made under s 40 by the health practitioner concerned.
By s 90B(3A), if the Director of Proceedings determines that a complaint should not be prosecuted in the Tribunal, he or she may refer the complaint back to the Commission for alternative action to be taken under s 39(1). By subs (3B) of s 90B, the Director of Proceedings may refer the complaint back to the Commission for further investigation.
Jurisdiction in respect of complaints is conferred on the Tribunal (in a somewhat elliptical fashion) by Subdivision 6 of Div 3 of Pt 8 of the National Law. By s 149 the Tribunal is empowered to make disciplinary orders if it finds that the subject matter of a complaint has been proved. Disciplinary orders available are spelled out in s 149A, s 149B and s 149C. The orders contemplated by s 149A range from caution or reprimand and the imposition of conditions on registration to ordering completion of a specified educational course, reporting on practice, and seeking and taking advice in relation to the management of the practitioner's practice. More severe action is contemplated by s 149C, pursuant to which the Tribunal may suspend or cancel the practitioner's registration if the Tribunal is satisfied that the practitioner is not competent to practise or is guilty of professional misconduct, is unfit in the public interest to practise the profession, or is not a suitable person for registration in the profession. By s 149B the Tribunal may also impose a fine, but only if satisfied that the practitioner was guilty of unsatisfactory professional conduct or professional misconduct and the Tribunal is satisfied that there is no other order or combination of orders that is appropriate in the public interest.
By s 165B(2) of the National Law, for the purposes of conducting an inquiry or appeal in relation to a medical practitioner, the Tribunal is required to be constituted by an Occupational Division member who is a senior judicial officer, 2 medical practitioners selected for appointment by the Medical Council as occasional members, and one lay person selected for appointment by the Medical Council as an occasional member from among a panel of lay persons nominated by the Minister administering the National Law.