Health Care Complaints Commission v Attia

Power to alter a decision of the Tribunal

1. Section 63 of the NCAT Act is in the following terms: 63 Power to correct errors in decisions of Tribunal (1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member. (2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct. (3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where: (a) there is an obvious clerical or typographical error in the text of the notice or statement, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect of form, or (d) there is an inconsistency between the stated decision and the stated reasons.
2. In addition, reg 9 (1) of the Civil and Administrative Tribunal Regulations 2013 (NSW) (the Regulations) gives the Tribunal power to set aside or vary a decision. That power can only be exercised if all parties consent or if the decision was made in the absence of a party. As the Commission does not consent to the proposed variation of the Decision and it was not made in the absence of a party, the power conferred by reg 9 of the Regulations, cannot be exercised.

Reasons for the application

1. On 20 January 2017, Solicitors for Mr Attia filed a Summons in the Supreme Court seeking an order that the Decision be quashed. Three days later a notice of motion was filed seeking an order staying the Decision.
2. Mr Attia points out that after the Decision was handed down, as required by s 176A(s) of the National Law, the Pharmacy Board of Australia removed his name from the register of practitioners. As a consequence of that action, he asserts it is not open to the Supreme Court to grant a stay of the Decision, citing in support Gorman v NSW Health Care Complaints Commission [2012] NSWCA 251 at [101]-[103]; Deano v Health Care Complaints Commission [2011] NSWSC 1570 (Deano) at [101].
3. In Deano, the appellant nurse sought an order for a stay of the decision made by the Nurses and Midwifery Tribunal to cancel her registration as a nurse. As in this matter, the decision made by the Tribunal took effect on the day it was made and by the time the appeal came before the Court the order had been implemented (see Deano at [5].) After considering the judgement of Handley J in McBride v Walton (Court of Appeal, Handley JA, 27 August 1993, unreported), Schmidt J concluded: 11. In the case of this statutory scheme [the National Law] it also appears that the Court has been given no power to revoke the cancellation of a nurse's registration, pending the hearing of an appeal, even if a stay of the Tribunal's order is granted. The practical effect of that situation is that if an appeal from the Tribunals' order is being contemplated, an approach should be made to the Tribunal, postponing the date of effect of the order. If that step is not taken and the order is implemented before any approach is made to this Court, no stay of the Tribunal's order can effect the reinstatement of a nurse's cancelled registration.
4. Mr Attia contends that the genesis of the purported error in the Decision was the failure of his legal representatives to draw to the Tribunal's attention the ramifications of making a decision with immediate effect. He states that as a consequence of the handing down of the Decision shortly before Christmas he was unable to take immediate steps to consult his lawyers and seek a stay of the Decision. He argues that it would not have been the intention of the Tribunal to deprive him of the right to appeal and seek a stay of the Decision and had the Tribunal been apprised of the consequences of making an order with immediate effect, it would have made the Order in terms he now seeks.
5. Mr Attia submits that the power conferred by s 63 of the NCAT Act to alter a decision is broad in scope and can be invoked in this case. He asserts that it is uncontroversial that the "slip rule" gives the Tribunal power to correct not only a simple clerical error but also an error resulting from the inadvertence of a party's legal representative to draw a matter to the attention of the Tribunal or Court, citing in support L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) [1982] HCA 59; (1982) 151 CLR 590 (Shaddock). In Shaddock, the High Court amended its own order to include a sum for interest, notwithstanding the fact that the Notices of Appeal to the Court of Appeal and to the High Court had not sought any order for interest. The High Court stated at [6]: Order 29, r. 11 [of the High Court Rules] is in the traditional form of a slip rule. It reflects the inherent jurisdiction of a court "at any time to correct an error in a decree or order arising from a slip or accidental omission"). In terms, the rule provides, inter alia, that "an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the Court or a Justice on motion or summons". The rule extends to authorize an omission resulting from the inadvertence of a party's legal representative. This is so, regardless of whether the order has been drawn up, passed and entered. (citations omitted)
6. In addition, Mr Attia cited in support Trad v Harbour Radio Pty Ltd [2016] NSWCA 80 (Trad), in which the Court of Appeal considered the operation of r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR), which states: Correction of judgment or order ('slip rule') If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.
7. In Trad, the Court of Appeal exercised the power conferred by r 36.17 of the UCPR to amend an order it had made by reinstating an order as to costs that was made by the trial judge in the judgement under appeal. Basten JA (with whom McColl JA and Ward JA agreed) wrote at [25], [26]: Rules in similar terms [to r 36.17 of the UCPR] have existed for a long time. The rule uses language which is open to a broad or a narrow construction. One construction is that there has to be a "slip" on the part of the court, as a result of which its intention is not fully or correctly expressed in the orders made. That is the narrow reading. The broad reading allows that the accidental slip or omission, which gives rise to an error, may be that of a party (or of the court). The latter construction has been accepted as conventional by the High Court: Although the line of authority was concerned with the High Court rules, the English authorities relied on demonstrated that there was no intention to restrict the principles so as not to be applicable in intermediate courts of appeal or, indeed, any court having a power expressed in similar terms. The costs of the trial having been within the express terms of the remitter by the High Court, the omission must be put down to inadvertence. Whether the inadvertence resulted from the submissions on behalf of Harbour Radio noted above (seeking to reserve its position until liability was determined) or simply an oversight on the part of the Court is beside the point. On either view, the matter not having been resolved, the slip rule is engaged. (citations and footnotes omitted)
8. Mr Attia also pointed to decisions made by differently constituted Tribunals of NCAT, said to support the proposition that the power conferred by s 63 of the NCAT Act can be invoked to correct an "error" found to have resulted from the inadvertence of a party's legal representative: Krimbogiannis v Fallshaw (Investments) Pty Ltd [2016] NSWCATCD 49 and Place v Department of Finance, Services and Innovation (No.2) [2017] NSWCATAD 21.

Can the power to alter the Decision conferred by s 63 of the NCAT Act be exercised?

1. The threshold issue to be determined is whether in the circumstances of this case the power to alter the Decision in the manner sought by Mr Attia can be exercised.
2. In construing s 63 it is necessary to have regard to the guiding principle for the NCAT Act which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 63(1). It is also necessary to have regard to the objects of that Act, which relevantly include: (c) to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and (d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and (e) to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality, and (f) to ensure that the Tribunal is accountable and has processes that are open and transparent, and (g) to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members.
3. In Newmont Yandal Operations Pty Limited v The J. Aron Corporation & The Goldman Sachs Group, Inc & 3 Ors [2007] NSWCA 195, Spigelman CJ emphasised the need to consider the precise words of the relevant "slip rule" in deciding whether the power to correct a decision can be exercised. (See also Health Care Complaints Commission v Mitchell [2015] NSWCATOD 151 at [26])
4. The pre-condition to the exercise of the power conferred by s 63 is that the President or the member who presided at the proceedings is satisfied that there is an "obvious error in the text of a notice of the decision or a written statement of reasons for the decision": s 63(1) of the NCAT Act. Section 63 gives four examples of an "obvious errors in the text of a notice of the decision or a written statement of reasons for the decision": (a) there is an obvious clerical or typographical error in the text of the notice or statement, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect of form, or (d) there is an inconsistency between the stated decision and the stated reasons.
5. I accept, as argued by Mr Attia, that the words "an error arising from an accidental slip or omission" should not be read down to mean "an accidental slip or omission made by the Tribunal" but could include an accidental slip or omission made by a legal representative.
6. However, for the following reasons I am unable to accept the proposition that the purported error arose from an "accidental slip or omission" made either by the Tribunal or Mr Attia's legal representatives in the substantive proceedings. (In this application and the appeal, Mr Attia is represented by different legal representatives to those who represented him in the original proceedings.)
7. First, Mr Attia and his representatives were squarely on notice that the order sought by the Commission was the cancellation of his registration as a pharmacist. It could not reasonably be maintained that they were caught by surprise by the Decision. Further, the parties consented to the Complaint being dealt with by way of a "one-stage hearing". This meant that the issue of whether some or all of the conduct particularised in the Complaint had been established and if so what order should be made, would be dealt with in the one hearing.
8. Second, the assertion that Counsel for Mr Attia in the original proceedings did not raise the issue of the date of effect of any cancellation order was because of "an accidental slip or omission" is entirely unsupported. Even if as asserted by Mr Flaherty Counsel for Mr Attia in the s 63 application, Mr Attia was unaware of the consequences of the Decision coming into effect immediately, this does not establish that the issue was not raised at the hearing because of inadvertence on the part of Counsel. Counsel for Mr Attia in the s 63 application, Mr Flaherty I am not privy to Counsel's thinking or instructions at that time. But even if privilege were waived and they were revealed, and it was seen that Counsel had inadvertently omitted to raise the issue, this would not necessarily resolve the question in Mr Attia's favour. As a general rule, clients are bound by the decisions made in the course of litigation by their counsel. Mistakes made by counsel, if demonstrated, may in some circumstances give rise to an appeal point. But, as the authorities referred to above show, and for the reason to which I now come, they do not generally give rise to the application of s 63 of the NCAT Act.
9. Third, I am unable to accept the submission made by Mr Attia that it is a forgone conclusion that had a request been made before the Decision was handed down that Order 1 be formulated in the manner now sought, that the Tribunal would have acceded to that request. While I accept that there are powerful factors that favour making Order 1 in the terms sought, it puts it too high to suggest that had the issue been raised the it would have been uncontroversial and the "error" immediately corrected. In my opinion, the purported error does not satisfy the test propounded in McHugh JA in Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 at 453: The rationale of the slip rule also requires that an omission or mistake should not be treated as accidental if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference of opinion might exist ... In general the test of whether a mistake or omission is accidental is that applied by Lord Herschell in Hatton v Harris [[1892] AC 547] (at 558) if the matter had been drawn to the Court's attention would the correction at once have been made? (emphasis added)
10. It is not possible to say whether there would have been "a real difference of opinion" between the parties if the issue had been raised. A further difficulty is that being a multi-member Panel it would be presumptuous of me to assume that, had the purported error been raised before the Decision was given, the other members of the Tribunal would have considered the variation sought uncontroversial and "made the correction at once".
11. I am not satisfied that the impugned formulation of Order 1 constitutes an "obvious error" within the meaning of s 63(3)(b) of the NCAT Act. Nor was it suggested that the impugned formulation falls within any of the other examples of "obvious errors" listed in s 63(3) or that it constitutes some other type of "obvious error". Not being satisfied that the impugned formulation of Order 1 constitutes an "obvious error in the text of a notice of the decision or a written statement of reasons for the decision", the power to alter the Decision cannot be exercised. 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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 February 2017