Health Care Complaints Commission v Clarke

NCAT Occupational|2022-04-22|Before: Jennifer Boland AM

Introduction

These reasons are in respect of two interlocutory applications agitated by Sharmain Daisy Clarke in disciplinary proceedings commenced against her by the Health Care Complaints Commission. In the course of dealing with the applications, on 22 April 2022, the Health Care Complaints Commission sought leave to rely on an Amended Application for disciplinary findings and orders. Ms Clarke opposed leave being granted.
For convenience only, and without wishing to cause any offence, in these reasons I will refer to Ms Clarke as "the practitioner" and the Health Care Complaints Commission as "the HCCC".
On 15 October 2021 the HCCC filed an application for disciplinary findings and orders in the Tribunal. The practitioner is the respondent to the application. In the complaint annexed to the application the HCCC asserts two complaints against the practitioner. First, the complaint asserts the practitioner suffers an impairment within the meaning set out in s 5 of the Health Practitioner Regulation National Law (NSW) (the National Law). The second complaint asserts the practitioner is not competent to practise within the meaning of 139 (a) of the National Law.
On 13 December 2021 the practitioner filed an Application for miscellaneous matters. I set out the orders sought below. In summary, the practitioner seeks that the disciplinary proceedings be dismissed. She asserts the Tribunal lacks jurisdiction to determine the complaint and foreshadows that an application will be made to the Tribunal to refer a question of law to the Supreme Court of New South Wales and/or that the proceedings be transferred to the Supreme Court.
On 4 February 2022 the HCCC applied to the Tribunal for the issue of a Summons to Dr Anthony Dinnen. On 7 February 2022 the HCCC applied to the Tribunal for the issue of a Summons to Royal Randwick Medical Centre. Summonses were issued by the Registrar pursuant to her powers under the Civil and Administrative Tribunal Act 2013 (NSW). Orders were made for the parties to have access to documents produced. The practitioner objects to the material produced being relied on in the proceedings. She seeks that the Summonses be set aside.

Background

The following facts are extracted from the Application for disciplinary findings and orders (with complaint annexed) and from the substantive material served on the practitioner by the HCCC and filed in the Tribunal on 30 March 2022 or in material relied on by the practitioner.
The practitioner received her Diploma in Nursing in Pretoria in 1994 and thereafter engaged in the practise of nursing in South Africa. She migrated to Australia in about 2003 and was first registered as a nurse on 27 February 2003.
The practitioner was employed on a full-time basis at Prince of Wales Hospital, Randwick, NSW between 2003 and 2008.
In October 2011 the practitioner commenced nursing at the Royal Hospital for Women, Randwick. Her employment at that hospital was terminated on 5 May 2015. Following her termination the practitioner, with the support from the NSW Nurses and Midwives Association, made allegations she had been assaulted and bullied during her employment and proceedings were instituted on her behalf in the Industrial Commission of NSW.
On 24 June 2015 the General Secretary of New South Wales Nurses and Midwives Association (the Association) wrote to the practitioner. The letter advised the practitioner as follows: As you are aware, we have previously advised you that, on balance, we do not believe you have reasonable prospects of success in any unfair dismissal application. We again reiterate the Association's advice set out in our letter to you dated 22 May 2015, in which we advised the Association does not believe it is in your interests to expend the considerable time and resources that would be required to participate in any arbitration process - especially as its likely outcome is simply to confirm the employer's decision in this matter i.e. that you lacked clinical competence.
On 21 September 2015, the Nursing and Midwifery Council conducted proceedings under s 150 of the National Law and conditions were imposed on the practitioner's registration including a condition that she practise under supervision and that she attend a performance assessment.
Performance assessments were scheduled for the practitioner in November 2015 and subsequently in 2017. The practitioner did not complete the first performance assessment and did not attend the other performance assessment for various reasons including health issues (shoulder injury).
In July 2017 the practitioner attended proceedings conducted under s 150C of the National Law. Different conditions were placed on her registration including a condition that she "not work as a nurse" and that she attend a health assessment.
On 28 March 2018 the practitioner attended a health assessment. She attended an Impaired Registrants Panel hearing on 22 May 2018. On 30 May 2018 she entered the health program and was subject to a condition not to work as a nurse (s 152K of the National Law),
During 2019 the practitioner attended a health assessment with a Council appointed psychiatrist and also attended an Impaired Registrant's Panel hearing. In the latter part of 2019 the practitioner requested a review of the conditions on her registration.
In February 2020 the practitioner again attended for a health assessment by a Council appointed psychiatrist who opined she suffered an impairment as defined in the National Law. On 24 March 2020 a further Impaired Registrant's Panel was convened and upheld the conclusion of the Council appointed psychiatrist.
On 10 September 2020 the Nursing and Midwifery Council of New South Wales (the Council) referred a complaint about the practitioner to the HCCC. The letter referring a complaint to the HCCC notes that the practitioner has instituted a number of legal proceedings in various courts and tribunals.
On 20 April 2022 Slattery J dismissed an application made to the Supreme Court of New South Wales on the basis that the proposed application dealt with the same subject matter of earlier complaints dealt with by Schmidt J in South-Eastern Sydney Local Health District v Clarke [2021] NSWSC 63. In the latter proceedings Schmidt J made orders against the practitioner under the Vexatious Proceedings Act 2008 (NSW). In her reasons her Honour noted the extent of litigation instituted by the practitioner at [33 (5),(6) and (7)] of her reasons including proceedings in the Industrial Relations Commission, Fair Work Australia, the District Court of New South Wales, the Supreme Court of New South Wales, the Court of Appeal, the Federal Circuit Court, the Federal Court, the High Court, Australian Human Rights Commission, the Anti-discrimination Board and this Tribunal.
As noted above, on 15 October 2021, the HCCC filed the substantive proceedings in the Tribunal. Following the hearing of this matter on 22 April 2022 the HCCC sought leave to file an amended Application for disciplinary orders and findings.
On 3 March 2022 the practitioner filed a Reply to the application for disciplinary findings. The practitioner denies and contests both complaints as set out in the complaint annexed to the application.

Summary dismissal application

It is appropriate that I set out the actual orders sought by the practitioner in her application. The orders sought are as follows: 1. Sharmain Daisy Clarke is noted to be the Respondent in the application made by the Health Care Complaints Commission NSW and requests respectfully that the application filed by the applicant be dismissed under (CAATA 2013) The Civil and Administrative Tribunal Act 2013 Sec 55 (1) (b) and or otherwise. 2. The respondent presses that the Tribunal under CAATA 2013 Sec 29 (1) (a) and (b) lacks jurisdiction in response to the application made by the applicant under the General jurisdiction power empowered by the Tribunal to determine the matters complained about. 3. The respondent foreshadows an application that the Tribunal will consider on the day either on its own motion for the foreshadowing application made by the respondent under Sec 54 References of Questions of Law to the Supreme Court and or otherwise; that the application be transferred to the Supreme Court on grounds relevant in matter number 2021/125433 and 2021/304833.
I note that the practitioner does not otherwise identify the proceedings set out in para 3 of her orders sought, but the actual proceedings are identified in the submissions of the HCCC. I refer to the proceedings when considering the practitioner's applications.

Relevant provisions of the NCAT Act and the National Law.

The practitioner seeks an order for summary dismissal pursuant to s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).
Section 55 (1) (b) of the NCAT Act provides as follows: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - (a) … (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,
Section 4 of the NCAT Act defines interlocutory orders as follows: interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following - (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (h1) the granting of leave for a person to represent a party to proceedings, (i) any other interlocutory issue before the Tribunal.
I am empowered to hear and determine any interlocutory application under s 165A (5) of the National Law.
The practitioner also relies on s 29 (1) (a) and (b) of the NCAT in her application. Section 29 (1) (a) and (b) provide: 29 General jurisdiction (1) The Tribunal has general jurisdiction over a matter if - (a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and (b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal.
Although I refer in more detail to the practitioner's submissions below, I perceive the gravamen of her application for summary dismissal is that she does not suffer and impairment as defined in the National Law and/or that the Tribunal does not have jurisdiction because of s 145B (3) of the National Law.
Section s 145B of the National Law provides: 145B Courses of action available to Council on complaint [NSW] (1) The following courses of action are available to a Council in respect of a complaint - (a) the Council may make any inquiries about the complaint the Council thinks appropriate; (b) the Council may refer the complaint to the Commission for investigation; (c) the Council may refer the complaint to the Tribunal; (d) the Council may refer the complaint to a Committee; (e) for a complaint about a health practitioner or student who is registered in a health profession other than the medical or nursing and midwifery profession, the Council may deal with the complaint by inquiry at a meeting of the Council; (f) the Council may - (i) refer the practitioner or student for a health assessment; or (ii) refer the matter to an Impaired Registrants Panel; or (iii) refer the professional performance of the practitioner concerned for a performance assessment; (g) the Council may direct the practitioner or student concerned to attend counselling; (h) the Council may refer the complaint to the Commission for conciliation or to be dealt with under Division 9 of Part 2 of the Health Care Complaints Act 1993; (i) the Council may refer the complaint to another entity, including, for example, a National Board; (j) the Council may determine that no further action should be taken in respect of the complaint. (2) The Commission must, on receipt of a complaint referred by a Council for investigation, investigate the complaint or cause it to be investigated. (3) If a Council makes a referral under subsection (1)(f), the matter ceases to be a complaint for the purposes of this Law and the Health Care Complaints Act 1993. (4) Subsection (3) ceases to apply in respect of any matter that a Council subsequently deals with as a complaint.

Authorities on summary dismissal

Although discussed in the context of the Uniform Civil Procedure Rules, the decision of the New South Wales Court of Appeal in Ugur v Attorney General for New South Wales [2019] NSWCA 86 is instructive in setting out the principles underpinning an application for summary dismissal on the grounds agitated by the practitioner. In Ugur the court said: One of the purposes of the power in r 13.4 of the UCPR to dismiss a proceeding summarily as frivolous or vexatious or as disclosing no reasonable cause of action or as being an abuse of the process of the court, is to save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings which raise no real question of fact or law. Another purpose is the protection of the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications. The lack of a tenable cause of action must be clearly demonstrated. Various formulations have been used to describe the clarity that must exist before a claim can be summarily dismissed (see for example, Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76 at 92; Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 ("Dey"); General Steel Industries Inc v Commissioner For Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128-129; Fancourt v Mercantile Credits Limited (1983) HCA 25; (1983) 154 CLR 87 at 99; Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; [2000] HCA 41 at [57]; Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [24] ("Spencer v Commonwealth"); and O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71; 16 BPR 31,705 at [67].) If there is a real question either of fact or of law, then the application for summary dismissal must fail (Dey v Victorian Railways Commissioners at 91). [my emphasis]

The practitioner's submissions on her application for miscellaneous matters

The practitioner relied on material attached to her application, including 145 pages of material stated to be "annexed to the respondent's Reply amongst other annexures relevant in the Reply provided to the Tribunal on 22 February 2022". She also relied on submissions in reply dated 6 April 2022 and a folder of documents dated the same day. Further material relevant to the proposed leave to amend the application was received by the Tribunal from the practitioner on 9 May 2022.
The documents filed on 6 April 2022 are wide ranging and include a continuing professional development plan, certificates of service dating back to the practitioner's employment in South Africa, a number of favourable and complimentary references from community members and medical professionals with whom the practitioner worked principally in 2015 and one dated 11 October 2017. Included in the documents are various certificates of attainment for courses undertaken by the practitioner including a statement of attainment in respect of cardiopulmonary resuscitation dated 21 May 2021. Also included in the folder of documents are complaints made by the practitioner to the HCCC in 2015 about nursing staff, correspondence from the NSW Nurses and Midwives Association, decisions of this Tribunal in unsuccessful applications by the practitioner in both the Administrative and Equal Opportunity Division and the Occupational Division.
The practitioner's submissions in support of her application refer to the complaints filed by the HCCC. At para 7 of her submissions the practitioner states: I, verily deny any conduct and or actions susceptible under SEC 149C of the National Law applicable in the abovementioned paragraph to be relevant in my personal and professional capacity of a registered practitioner commencing in 1994 that may require an intervention from the Tribunal.
I pause to note that s 149C (1) (a) provides that a Tribunal may suspend or cancel a practitioner's registration if it is satisfied that the practitioner is not competent to practise the practitioner's profession. This is one of the complaints brought by the HCCC against the practitioner.
I am unable to discern the nature of the practitioner's submission at para 14. There she submits: Point of Law is to be tested under the Crimes Act 1900 relevant under jurisdiction and non-jurisdictional errors.
It appears that the practitioner is asserting jurisdictional error in respect of earlier Tribunal proceedings and/or numerous proceedings she has brought, and which are referred to in Schmidt J's decision cited above. The practitioner submits "I request the order the judgments are referred for determination to a higher court on the Tribunal's own motion".
At para 29 the practitioner submits: My nursing registration was suspended on 13 July 2017 in the absence of any evidence of misconduct, psychiatric illness and unsuitability to practise the profession, neither was I subject to any historical disciplinary action/s taken by the applicant's client.
At paras 42 and 43 the practitioner submits: Frivolous and Vexatious attempting to circumvent irrelevant aspects surrounding the action of medical and psychiatric officers' opinions made recklessly over a period of time for an ulterior motive whether it was made knowingly or unknowingly is yet to be determined within other legal jurisdictions. The reckless nature and bad faith of the applicant's response in making the application is submitted by its own volition in the materials supporting its application reflects on judgements subject to medical practitioners' involvement in litigations, what is the relevance of the judgements in the application before the Tribunal?
I discern from the above paragraphs the practitioner is objecting to some of the material relied on by the HCCC in the substantive proceedings including the decision of Schmidt J, a 2008 decision of the Industrial Relations Commission of NSW as well as the expert reports of Dr Anthony Samuels, Psychiatrist and the discharge summary from the Royal North Shore Hospital of 16 December 2019.
I pause to note that the material relied on by the HCCC in the substantive proceedings also includes material from the practitioner's treating specialist who opined in February 2019 that he found no evidence of psychiatric illness in the practitioner.
At para 62 of her submission the practitioner concedes she suffered "a physical and emotional response within the 8 years of the applicant making its application" but says at no time was she suffering any psychiatric ailments that prevented her from practising nursing.
At para 63 the practitioner states: I also suffered an injury which went undiagnosed commencing Jul 2017 to mask the assessment to be of psychiatric injury for ulterior motives, I sustained a stroke of my tongue and was misappropriately opiniated suffering a psychiatric injury.
The practitioner submits that she was denied a proper assessment of her condition at the time, and says she has pronunciation difficulties "which are the after effects of the numbness on my tongue".
At the conclusions of her submissions, the practitioner indicates that, in her view, the Tribunal in earlier decisions was guilty of jurisdictional error, and she invites the Tribunal to now reconsider its decisions. I do not take this submission into account as it forms no part of any relevant application before the Tribunal.

The HCCC submissions

The submissions recite the particulars of the Complaint in the substantive proceedings, list documents relied on in those proceedings, and set out extracts from reports of the HCCC's expert, Dr Anthony Samuels.
At para 30 the submissions canvas the objection to the Tribunal's jurisdiction in this matter.
The submissions note, and I agree, it is difficult to understand the practitioner's reliance on proceedings 2021/125433 and 2021/308433. The HCCC identifies these proceedings as the decision of the Supreme Court in Clarke v Adams [2021] NSWSC 1665 being proceeding in which Beech-Jones CJ at Common Law refused leave to the practitioner to commence proceedings against a number of medical practitioners and the Northern Sydney Area Health Service. The second set of proceedings is identified as Clarke v Nursing and Midwifery Council of New South Wales [2022] NSWSC 15 in which Walton J refused the practitioner's leave pursuant to the Vexatious Proceedings Act 2008 (NSW) to commence proceedings against the Council.
The submissions note that the practitioner relies, as a basis for her summary dismissal application, on s 145B of the National Law. It is submitted the practitioner believes because she was referred to an Impaired Registrant's Panel, as a consequence of s 145B (3) the matter ceases to be a complaint.
The submissions point out that the practitioner "fails to acknowledge s 145B (4) which provides "Subsection 3 ceases to apply in respect of any matter that a Council subsequently deals with as a complaint". The submissions note that the Council made a complaint in writing to the HCCC about the practitioner on 10 September 2020.
The submissions refer to the decisions of the Tribunal in Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 at [222] and Health Care Complaints Commission v Knowles [2021] NSWCATOD 49 at [45]. It is submitted that any application to terminate the proceedings should be one brought under Cl 12 of Schedule 5D of the National Law. Notwithstanding reference is made to Cl 12 of Schedule 5D, the submissions note it would not be in the public interest for the proceedings to be terminated.
The HCCC submit that the complaint is not frivolous or vexatious or otherwise misconceived or lacking in substance. The HCCC submit there is a prima facie case for the Tribunal's determination which requires the testing of evidence at a final hearing.
In responding to the practitioner's submissions about the Tribunal's "general jurisdiction" the submissions refer to the decision of Gleeson JA with whom White JA and Emmett AJA agreed in Kirby v Health Care Complaints Commission [2021] NSWCA 139 at [80]-[81].
The submissions conclude noting the requirements of s 54 of the NCAT if a matter is to be referred to the Supreme Court on a question of law, and submit this provision is not applicable to interlocutory applications and further that any referral, if made, may attract the provisions of the Vexatious Proceedings Act.

Consideration

I commence by noting that the practitioner is aggrieved and upset that her mental health is in issue in these proceedings. I also accept that in this matter she does not have the benefit of legal representation.
I do not accept the practitioner's argument that the proceedings commenced by the HCCC are frivolous or vexatious. The expression "vexatious" has been judicially considered particularly in decisions in the context of the Vexatious Proceedings Act which Act defines the conduct (see Mohareb v Palmer (No 2) [2020] NSWCA 324 per Basten JA at [10].
In the context of this Tribunal the expressions in s 55 (1) (b) are usefully interpreted in the decision of the Appeal Panel in BDK v Department of Education and Communities [2015] NSWCATAP 129 at [66] as follows: In our view a reasonably broad connotation should be given to the meaning of the four categories of conduct identified by s 55(1)(b). The intent of the provision, as we see it, is to seek to give the Tribunal a broad power to deal with abuses of its processes, and for them to be interpreted and applied in a power which captures any kind of abuse of process, that can reasonably be seen to fall within their compass. While 'misconceived' and 'lacking in substance' may be seen as relatively specific terms, we think a flexible, purposive interpretation can be adopted in determining whether proceedings are ' frivolous ' or ' vexatious ', conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings.
I am satisfied that the first basis the practitioner seeks summary dismissal of the Application for disciplinary findings and orders based on s 145B (3) of the National Law is misconceived. The Council determined to and made a complaint to the HCCC on 20 September 2020, and hence s 145B (3) no longer operates to bar proceedings.
The second basis that the practitioner seeks to have the proceedings summarily dismissed is on the basis she does not suffer an impairment. There is conflicting evidence on this topic. The HCCC as a statutory authority is bound by the NSW Model Litigant Policy for Civil Litigation. The HCCC relies on expert reports of Dr Anthony Samuels and a discharge summary from Royal North Shore Hospital dated 16 December 2019.
Dr Samuels most recent report is dated 25 February 2020. At para 46 and 47 of his report Dr Samuels opines: [NOT FOR PUBLICATION]
The practitioner does not dispute that she has been requested, on a voluntary basis to attend on Dr Murray Wright, psychiatrist for the purpose of preparing a report but on 14 February 2022 declined to do so.
The HCCC has also included in its brief of evidence to be relied on in the substantive proceedings reports, including a report dated 26 February 2019, from the practitioner's treating psychiatrist, Dr Anthony Dinnen, in which he states he has found the practitioner "to be intelligent, well balanced emotionally, and without evidence of psychiatric illness".
Thus, is it clear there is a serious factual dispute to be resolved in the substantive proceedings as to whether or not the practitioner does suffer an impairment as defined in the National Law.
Further Complaint Two, which asserts the practitioner is not competent to practise, relies not only on her asserted impairment, but particularises the failure to attend and complete a performance assessment as required by the Council.
The question of the practitioner's capacity to practise her profession is also a matter on which the parties join issue. The practitioner has provided evidence of courses undertaken by her since her suspension, and the HCCC's documentation refers to an incomplete performance assessment. These matters too are substantial and require determination. The allegations by the HCCC are not frivolous, vexatious or otherwise lacking in substance.
I turn then to the practitioner's grounds agitated in respect of "general jurisdiction". I found the practitioner's submissions on this topic to be confusing and difficult to discern.
Section 28 (1) of the NCAT Act sets out the Tribunal's jurisdiction being jurisdiction conferred under the NCAT Act itself or any other legislation.
Section 29 of the NCAT provides as follows: 29 General jurisdiction (1) The Tribunal has general jurisdiction over a matter if - (a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and (b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal. Note - The general jurisdiction of the Tribunal includes (but is not limited to) functions conferred on the Tribunal by enabling legislation to review or otherwise re-examine decisions of persons or bodies other than in connection with the exercise of the Tribunal's administrative review jurisdiction. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction - (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings. (3) A general decision of the Tribunal is a decision of the Tribunal determining a matter over which it has general jurisdiction. (4) A general application is an application made to the Tribunal for a general decision. (5) Nothing in this section permits general jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.
Schedule 5 Division 3 of the NCAT sets out a number of matters relevant to the conduct of proceedings under the National Law.
Part 8 of the National Law, a NSW provision, includes the disciplinary powers which may be exercised by the Tribunal. The Tribunal is defined as the "Civil and Administrative Tribunal".
In her submissions Counsel for the HCCC referred to the decision of Gleeson JA in Kirby v Health Care Complaints Commission. In those proceedings Dr Kirby brought proceedings for judicial review of the decision of the Director of Proceedings of the HCCC to bring proceedings in the Tribunal. Dr Kirby asserted that the Tribunal did not have power to hear and determine the proceedings because it was not a disciplinary body established under the National Law and therefore the Director could not bring proceedings in the Tribunal. At [82] his Honour said: 82 Accordingly, the Tribunal has jurisdiction to hear a complaint referred by the Commission to the Tribunal under the National Law (ss 145C or 145D). That includes in the circumstance referred to in s 150D(4), where the Commission refers the complaint to the Tribunal after investigation of a matter referred by a Council to the Commission under s 150D(1), following a Council taking action under s 150(1) to suspend a registered health practitioner's registration on the grounds of protection of the health or safety of any person or otherwise in the public interest.
The decision in Kirby was not directly concerned with the Tribunal's general jurisdiction, rather the issue was whether or not the Tribunal was a disciplinary body established under the National Law. The practitioner's submissions appear to focus, not on whether the Tribunal is a disciplinary body, but whether it can exercise general jurisdiction. She appears to assert the Tribunal cannot exercise its general jurisdiction because it is not authorised to do so under enabling legislation. I note firstly that Schedule 5 to the NCAT Act designates legislation to be conducted in the Occupational Division of the Tribunal. Acts included are the Health Care Complaints Act 1993 (NSW) and the National Law. Secondly, the Health Practitioner Regulation National Law (Adoption of National Law) Act 2009 in s 6C provides: 6C Responsible tribunal for Health Practitioner Regulation National Law The Civil and Administrative Tribunal is declared to be the responsible tribunal for the purposes of the Health Practitioner Regulation National Law.
Section 136 of the National Law defines the expression "Tribunal" in Part 8 of the National Law as the Civil and Administrative Tribunal. Subdivision 6 confers power on the Tribunal in respect of disciplinary proceedings. As presently informed, I accept that the National Law is the enabling legislation which the Tribunal exercises under its general jurisdiction. I therefore reject the practitioner's assertion that her s 29 submissions provide a basis to dismiss the proceedings under s 55 (1) (b) or otherwise.
It is unnecessary that I address the practitioner's submissions of referral of a question of law to the Supreme Court. First, and importantly no question of law to be considered by the President for referral to the Supreme Court has been articulated. Secondly, and of some relevance, is the recent decision of Slattery J in Sharmain Daisy Clarke v Health Care Complaints Commission [2022] NSWSC 495. There his Honour refused to allow the practitioner to issue a Summons against the HCCC for damages because the subject matter of the complaint proposed to be agitated was covered by the orders made by Schmidt J. In short, the practitioner continues to agitate or seek to agitate matters which have already been subject of judicial determinations. Finally, the practitioner's order sought indicates the referral of a question of law is a matter to be agitated in the substantive proceedings not this interlocutory proceedings.

The Summons

As earlier noted, the practitioner objects to Summonses issued by the Registrar at the request of the HCCC. Documents have been produced and on 14 February 2022 leave was granted to inspect documents produced. On that day access was granted to the practitioner for one week and subject to any objection from her, general access was granted from 22 February 2022.

The applicant's submissions

The practitioner filed submissions on 18 February 2022 in which she objects to the summonses on the following bases: 1. The evidence sought is not relevant to any issue in dispute. 2. The evidence is privileged from disclosure. 3. The Summons is not sufficiently precise to identify the documents being sought. 4. The Summons is oppressive in scope.
The practitioner asserts that the medical reports and information disclosed to her treating doctors are protected under s 176F(3) of the National Law. The practitioner says she does not consent to the disclosure of the documents for use in civil proceedings.
In her submissions the practitioner asserts Dr Andrew Adams has "repeatedly made wrongful diagnoses, administered wrongful treatment and illegal grooming of the respondent to consume psychiatric drugs Lithium and Sodium Valproate when there was no indication for treatment" She also notes that proceedings are underway in the District Court "and Magistrates Court" under the Crimes Act 1900 (NSW).
The practitioner asserts the Summonses are "not only oppressive but a potential phishing expedition"

The HCCC's submissions

The HCCC submit that the documents sought in the Summonses relate to the practitioner's mental health records with "her previous treating psychiatrist …and her previous treating General Practitioner". It is submitted that the "critical" issue in these proceedings is the practitioner's mental health and because the complaint asserts an impairment that the documents sought are "clearly relevant to an issue in dispute".
It is further asserted that the records are not subject to privilege on the basis they are business records. It is noted that there has been compliance by both practitioners with the Summonses and therefore no issue of oppression arises.
At para 24 of the submissions reference is made to the decision in Council for the NSW Bar Association v Lott [2016] NSWCATOD 159 that the documents are sought for a genuine forensic purpose and it is on the cards that the documents sought will materially assist the HCCC's case. I note that the Court of Appeal in Lott v Council of the New South Wales Bar Association [2017] NSWCA 145 at [24] noted the principles as set out in the decision below at [39]-[49] were correct.
The HCCC deny the documents sought in the Summons are a "fishing expedition".
The submissions next address the practitioner's contention that the documents which are now produced constitute "protected reports". The submissions advance the position that s 176F (3) has no application as the documents produced under the summonses are not protected reports as defined under s 138 of the National Law.
The submissions finally note the favourable content of the reports of Dr Dinnen dated 24 August 2020 and Dr Adams' report of 3 March 2019 and states that documents produced "may in fact assist the [practitioner's case]".

Consideration

I commence by recording that I accept the submissions of the HCCC that any issue of oppression has been rendered nugatory by the production of documents by the two doctors concerned. I also accept documents having been produced no issue of the scope of the documents sought arises.
Secondly, I accept that there is a genuine forensic purpose for the production of the documents and it is "on the cards" that the material produced is likely to materially assist the Tribunal to determine issue asserted about the practitioner's mental health. It is relevant to note that reports prepared by the practitioner's treating psychiatrist are contained in the HCCC's documents albeit the last report is dated 27 May 2019.
Thirdly, I note at this point the question of admissibility of any records produced has not yet arisen and is a matter for the substantive proceedings. The rules of evidence in relation to admissibility of documents do not apply in proceedings under the National law (Schedule 5D Cl 2). However, the rules of evidence provide a sound touchstone to afford parties procedural fairness. Further, s67 of the NCAT Act does incorporate Part 3.10 (Privileges) of Chapter 3 of the Evidence Act 1995 (NSW). S67 (1) provides: (1) Nothing in this Act requires the disclosure of a document if the Tribunal or President is satisfied that evidence of the document could not be adduced in proceedings before a NSW court by reason of the operation of any of the following provisions of the Evidence Act 1995 - … (c) Part 3.10 (Privileges) of Chapter 3.
Finally I note that the practitioner refers to s 176F of the National Law. That section provides: 176F Confidentiality of protected reports (1) A person must not, directly or indirectly - (a) disclose a protected report to another person that the person has obtained in the exercise of the person's functions under this Law; or (b) make a record of, or disclose to another person, information contained in a protected report that the person has obtained in the exercise of the person's functions under this Law Maximum penalty - 50 penalty units. (2) Subsection (1) does not apply to the disclosure by a person of a protected report or information contained in a protected report - (a) for the purpose of exercising functions under this Law; or (b) to the Commission. (3) A protected report may not be admitted or used in civil proceedings before a court other than with the consent of - (a) the person giving the report; and (b) the person the subject of the report. (4) A person may not be compelled to produce a protected report, or to give evidence in relation to the report or its contents, in civil proceedings before a court. [my emphasis].
A protected report is defined in s 138 of the National Law as follows: protected report means any of the following reports - (a) a report prepared by an Impaired Registrants Panel for a Council; (b) a report prepared by an assessor for a Council or Performance Review Panel; (c) a report prepared by a registered health practitioner about an examination conducted under section 145E, 152B or 152C; (d) a report prepared by a registered health practitioner for a Council in connection with an examination of a person by the health practitioner as required by a condition of registration or an order imposed by an adjudication body on the person; (e) a report prepared by a registered health practitioner for a Council under a request made by a person to the health practitioner in connection with a matter being dealt with by an Impaired Registrants Panel; (f) a report prepared, under clause 12 of Schedule 5B, by a person giving expert advice to a Performance Review Panel.
Sections 148H, s156F and s 171F of the National Law and cl 28 of Schedule 5 of the NCAT Act provides that the Tribunal is not required to include confidential statement in any statement of reasons it gives under the Act for any of the Division decisions. The decisions include decisions under the National Law.
There is nothing before me which indicates that any of the material produced pursuant to the summonses falls within the categories of "protected report" as defined in s 138. However, if I am wrong about that, I accept that a protected report may be admitted into proceedings (see s 176F (2) of the National Law and confidentiality maintained by the contents not being published in the Tribunal's published reasons for decision on NSW Caselaw.
In summary, I am not satisfied any objection raised by the practitioner about the summonses is established.

Amended to the Application for disciplinary findings and orders

The practitioner opposes the HCCC being granted leave to amend the Application dated 15 October 2021 and filed in the Tribunal on that day.
In para 3 under Orders sought the Application states: Cancellation of the practitioner's registration under s 149C (1) (b) of the National Law with a non review period of 6 years.
Section 149C (1) (b) of the National Law provides as follows: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - (a) … (b) the practitioner is guilty of professional misconduct; or
The complaint as particularised does not allege professional misconduct and the reference to s 149C (1) (b) is clearly a mistake or typographical error.
It is clear that from the particulars of the complaint that the orders sought are orders under s 149 (1) (c) and s 149 (7) of the National Law. It is appropriate and proper that the Application to the Tribunal should be amended. This amendment is not made late in the day, or is such that it is likely to cause prejudice to the practitioner (see Aon Risk Services Australia Limited v Australian National University [2009] HCA 27). Accordingly I propose to grant leave to the HCCC to file an Amended application for disciplinary findings and orders which sets out correctly the relevant provisions of the National Law under which orders are sought.

Costs

The HCCC seeks an order that the practitioner pay its costs of the interlocutory applications. I have determined that, at this stage of the proceedings, the appropriate course is to reserve the costs of these applications to the substantive proceedings.

orders 1. The application by Sharmain Daisy Clarke for summary dismissal of the Application for Disciplinary Findings and Orders filed on 15 October 2021 is dismissed. 2. The application by Sharmain Daisy Clarke to set aside Summonses issued to the Proper Officer Royal Randwick Medical Centre and Dr Anthony Dinnen is dismissed. 3. Leave is granted to the Health Care Complaints Commission to rely on an Amended Application for disciplinary findings and orders. 4. The costs of the applications are reserved to the substantive proceedings.

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: 26 May 2022

Health Practitioner Regulation National Law Vexatious Proceedings Act 2008(NSW)

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