On 11 April 2016 the Health Care Complaints Commission (the HCCC) lodged an application with the Tribunal against an enrolled nurse, Mr Anthony Elliott (the practitioner). The HCCC seeks that the Tribunal make disciplinary findings and orders against the practitioner under the Health Practitioner Regulation National Law. (the National Law).
The asserted unsatisfactory professional conduct and or professional misconduct is said to have been perpetrated by the practitioner during his employment at the South Coast Private Hospital.
The matter was listed for directions on 13 May 2016 before me. On that occasion Ms F Westwood, solicitor appeared on behalf of the HCCC. There was no appearance by or on behalf of the practitioner. As Ms Westwood explained difficulties had been encountered in endeavouring to effect service on the practitioner, I directed that the HCCC could lodge an application for substituted service on or before 27 May 2016 and that application would be dealt with "on the papers". The present application was lodged on 23 May 2016.
[2]
The grounds for and the evidence relied on in support of the application.
The HCCC's grounds for the application state that
1. Reliance is placed on the Affidavit of Faye Margaret Westwood sworn 23 May 2016;
2. That the applicant has confirmed the practitioner's current residential address by conducting an electoral roll search;
3. That the applicant has previously unsuccessfully attempted to serve documents on the practitioner by way of personal service and by registered post at his residential address and by way of email
4. That it is impracticable for the Applicant to serve documents on the practitioner in accordance with the NCAT Rules; and
5. Accordingly, service on the practitioner by leaving a copy of the documents at the practitioner's residential address is a method which will, in all reasonable probability, bring knowledge of the proceedings to the practitioner.
In her affidavit Ms Westwood explains that she instructed a professional process server to serve the application for disciplinary findings and orders (the application) on the practitioner at his residential address but when service was first attempted in March 2016 the process server was unable to elicit a response from the intercom at the practitioner's unit block. The process server reported seeing a bundle of mail in the letterbox addressed to the practitioner.
On 4 May 2016 Ms Westwood deposes to receiving email correspondence from the process server setting out the attempts that had been made to serve the practitioner. The process server's email disclosed that enquiries made of the letting agent for the unit revealed the practitioner was still a tenant at the relevant address.
Ms Westwood deposes that on 12 April 2016 she forwarded the application with a cover letter to the practitioner by registered post but the documents were returned to her marked as "unclaimed" on 29 April 2016.
Ms Westwood deposes of her further attempts to bring the application to the practitioner's attention. She deposes that on 3 May 2016 she forwarded an email to the practitioner at the email address known to the HCCC, attached the application and advised of the directions hearing to be held on 13 May 2016.
Ms Westwood further deposes that on 9 May 2016 she telephoned the practitioner's mobile phone number, that she spoke to him briefly and confirmed that he still lives at the address at [suburb]. After the directions hearing Ms Westwood deposes that she had a clerk conduct an electoral roll search which confirmed the practitioner's address is the address set out in the application.
I note that at the directions hearing conducted on 13 May 2016 I telephoned the practitioner's mobile telephone but the call was terminated by the practitioner.
[3]
Relevant provisions of the Civil and Administrative Tribunal Act and rules.
It is convenient to commence my discussion by reference to the National Law. There is no provision in the National Law that empowers the Tribunal to make an order for substituted service.
Part 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) deals with practice and procedure of the Tribunal.
Section 35, which is found in Part 4, states that the provisions of the part is subject to the enabling legislation and the procedural rules. There is no dispute in this case the enabling legislation is the National Law. There is no inconsistency with the National Law in this case in applying the provisions of CAT Act and rules, rather the National Law and rules fill a lacuna in the National Law.
Part 4 of the Civil and Administrative Tribunal Rules deals with service. Rule 15 provides for substituted service. It provides as follows:
15 Substituted and informal service generally
(1) If a document that is required or permitted to be served on a person in connection with any proceedings before the Tribunal:
(a) cannot practicably be served on the person, or
(b) cannot practicably be served on the person in the manner provided by law,
the Tribunal or a registrar may direct that, instead of service, such steps be taken as are specified by the Tribunal or registrar for the purpose of bringing the document to the notice of the person concerned.
(2) The Tribunal or a registrar may direct that the document be taken to have been served on the person concerned on the happening of a specified event or on the expiry of a specified time.
(3) If steps have been taken, otherwise than under a direction under this rule, for the purpose of bringing the document to the notice of the person concerned, the Tribunal or a registrar may direct that the document be taken to have been served on that person on a date specified by the Tribunal or registrar.
[4]
Relevant legal principles
The relevant legal principles to consider when making an order for substituted service are discussed by Palmer J in Alstrom & ors v George Sirakas [2010] NSWSC 669 at [41]-[44]. His Honour noted that "the practicality, or impracticality, of personal service will be coloured by the degree to which the Court can be assured that substituted services will efficaciously bring the proceedings to the proper notice of the defendant. The more likely it is that substituted service will not be efficacious, the more difficult it will be to persuade the Court to dispense with personal service". See also Atkinson v Crowley [2011] NSWCA 194 per Basten JA at [12] and [13].
[5]
Discussion and conclusions
I am satisfied from the matters set out in Ms Westwood's affidavit that the practitioner is well aware that the HCCC has brought the application to the Tribunal seeking disciplinary orders against him.
I am further satisfied that if the application and the orders now made are sent to the applicant at his residential address that they will be adequately brought to his attention. I accept that the applicant does still reside at his residential address and has been undertaking steps to frustrate the service of the application on him.
I am satisfied that is its appropriate for the orders generally as sought in the application to be made.
[6]
ORDERS
ORDER That the Health Care Complaints Commission (the HCCC) shall by way of substituted service serve on Mr Anthony Elliott on or before 5 July 2016:
(a) a copy of the Application for Disciplinary Finding and Orders lodged with the Tribunal on 11 April 2016
(b) a copy of the Application for Stay or interim order (being the application for substituted service) lodged with the Tribunal on 23 May 2016 and
(c) a copy of this order
by leaving the documents at [residential address].
[7]
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: 28 June 2016
Parties
Applicant/Plaintiff:
Health Care Complaints Commission
Respondent/Defendant:
Elliott
Legislation Cited (2)
Health Practitioner Regulation National Law Civil and Administrative Tribunal Rules 2014(NSW)