Health Care Complaints Commission v Hill

CA 53 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Adam Hill (Respondent) Representation: Counsel: K Richardson SC / M Pulsford (Applicant) A Moses SC / J Alderson / E Chan (Respondent)

Solicitors: Nicole Lawless, Director of Proceedings (Applicant) HWL Ebsworth (Respondent) File Number(s): 2022/00009556 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2021] NSWSC 1645 Date of Decision: 16 December 2021 Before: Simpson AJ File Number(s): 2020/278826

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant, Dr Adam Hill, is an anaesthetist registered under the Health Practitioner Regulation National Law (NSW). In February 2019, the Medical Council NSW made a complaint against the appellant to the Health Care Complaints Commission ("the Commission"). The complaint alleged that, during a colonoscopy and rectal biopsy, the appellant accepted a surgeon's invitation to put on a glove and feel the patient's rectal tumour without the patient's consent. In July 2020, the Commission's Director of Proceedings filed an application for disciplinary findings and orders against the appellant in the NSW Civil and Administrative Tribunal ("the Tribunal"). The Commission alleged that the appellant was guilty of unsatisfactory professional conduct and professional misconduct. In September 2020, prior to the hearing of the complaint, the appellant commenced proceedings in the Common Law Division seeking to quash the Director's decision to prosecute the complaint. The primary judge made an order quashing the decision to prosecute the appellant for professional misconduct on the basis that it was legally unreasonable. However, the primary judge was not satisfied that the decision to prosecute for unsatisfactory professional conduct was legally unreasonable. The Commission appealed against the primary judge's decision. During the hearing, a question was raised about the jurisdiction being exercised by the primary judge and the jurisdiction of the Court on an appeal by way of rehearing. The parties were granted leave to file further written submissions on the issue. The primary issue on appeal was whether the Supreme Court had jurisdiction to review the Director of Proceedings' decision to commence disciplinary proceedings in the Tribunal on the ground of legal unreasonableness. The Court held (Basten AJA, Ward P and Mitchelmore JA agreeing), allowing the appeal: (1) To determine whether the Supreme Court has supervisory jurisdiction, the relevant question is whether the decision by the Director of Proceedings should be treated as "final" (in the sense of immune from review for errors of law). The Court must determine whether it was a purpose of the legislation that an act done in breach of the provision should be invalid", a question to be resolved by considering the text, context and purpose of the legislation: [37]-[38]. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4, applied. (2) Decisions by the Director of Proceedings are decisions to invoke the jurisdiction of a tribunal. The Tribunal exercises judicial functions in determining whether to suspend or cancel the registration of a medical practitioner. The Director of Proceedings exercises powers that are comparable with those of a prosecutor, which are largely immune from judicial review but always subject to the control of the court or tribunal in which proceedings are commenced. This leaves open the possibility that a decision may be invalid if made for a corrupt or improper purpose, or without compliance with mandatory preconditions: [39]-[41]. Health Practitioner Regulation National Law (NSW), ss 3A, 90A, 90B, 90C, 145C, 145D; Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 38, 55, 60, Sch 5, Pt 4, Div 3, cl 9, discussed. Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 applied. (3) The decision by the Director to commence disciplinary proceedings in the Tribunal was immune from judicial review on the ground of legal unreasonableness. The exercise of supervisory jurisdiction on this ground would require reviewing the material before the Director in light of the paramount consideration of protecting the health and safety of the public. Where the legislature has established a specialist tribunal to determine whether a health practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the circumstances in which it intended that a court should be able to review such a preliminary decision will be limited: [47], [51]-[53]. Health Practitioner Regulation National Law (NSW), s 3A, referred to. Barwick v Law Society of New South Wales [2000] HCA 2; 74 ALJR 419; Council of the Law Society of New South Wales v Levitt [2013] NSWCA 247, distinguished. (4) The decision by the Director to commence proceedings was either valid or it was not. There was no basis in judicial review to find that the decision was valid in so far as it characterised the misconduct in one way, but not in so far as it characterised misconduct in another: [54]. (5) The appellant could not claim relief in the nature of certiorari because the decision by the Director of Proceedings had no relevant effect on his legal rights. The Director of Proceedings did not make findings of fact nor interfere with the appellant's registration: [55]-[56]. Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44, applied. (6) In circumstances where the Tribunal had power to control any abuse of its purpose, the Court should refuse relief on the ground that the appellant failed to make an application in the Tribunal in relation to the alleged professional misconduct: [57]. Civil and Administrative Tribunal Act 2013 (NSW), s 55, discussed.

JUDGMENT

1. WARD P: I agree with Basten AJA.
2. MITCHELMORE JA: I have had the advantage of reading in draft the reasons of Basten AJA. I agree with the orders his Honour proposes. In light of the detail of his Honour's reasons, I am able to express my conclusions briefly.
3. Section 90B(1) of the Health Care Complaints Act 1993 (NSW) confers particular functions on the Director of Proceedings of the Health Care Complaints Commission ("the Commission") "in relation to any complaint referred to the Director by the Commission". The word "complaint" is defined in s 4 of the Act, to mean, relevantly for present purposes, "a complaint made under this Act". A complaint may be made under the Act by any person (s 8) and it may be made, relevantly, concerning "the professional conduct of a health practitioner" (s 7(1)(a)).
4. The functions of the Director of Proceedings under the Health Care Complaints Act include determining "whether the complaint [being a complaint referred by the Commission] should be prosecuted before a disciplinary body and, if so, whether it should be prosecuted by the Commission or referred to another person or body for prosecution": s 90B(1)(a). If the Director determines that the complaint should be prosecuted before a disciplinary body by the Commission, a further function of the Director is "to prosecute the complaint before the disciplinary body": s 90B(1)(a1).
5. The relief that the primary judge granted in Order 3, which as Basten AJA notes at [11] was the operative order, did not relate to the Director's decision to prosecute the complaint per se. Rather, the relief related to the Director's characterisation of the conduct the subject of the complaint in the application to the NSW Civil and Administrative Tribunal ("Tribunal"); and only in so far as the Director characterised the complaint as involving professional misconduct. Having regard to the statutory context, and as the Commission submitted, that characterisation exercise was properly construed as forming part of the Director's exercise of the function in s 90B(1)(a1) of the Health Care Complaints Act, to prosecute the complaint.
6. Division 3 of Part 8 of the Health Practitioner Regulation National Law (NSW) ("National Law") makes detailed provision as to how complaints are to be dealt with under that Act. Relevantly for present purposes, as Basten AJA has pointed out, s 145C(1)(a) of the National Law provides, inter alia, that the Commission may refer a complaint to the Tribunal, with s 145D imposing a duty to do so in circumstances which reflect the Tribunal's disciplinary powers in Subdivision 6. Pursuant to s 149 of the National Law, the powers of the Tribunal for which that Subdivision makes provision may only be exercised if the Tribunal "finds the subject-matter of a complaint against the practitioner … to have been proved" (emphasis added) (subsection (a)) or the relevant health practitioner who is the subject of the complaint "admits to it in writing to the Tribunal" (subsection (b)).

Procedural background

1. The proceedings in the Common Law Division were heard by Simpson AJ over three days in March 2021. On 16 December 2021, judgment was delivered extending time within which to commence the proceedings, granting leave to the practitioner to file and rely on a proposed amended summons (not provided to the Court until after the completion of the hearing), and making the following operative order: "3. Quash the decision of the Health Care Complaints Commission to prosecute the plaintiff in the Civil and Administrative Tribunal of NSW for professional misconduct." The amended summons was otherwise dismissed. [2]
2. On 14 March 2022, the Commission filed a summons in this Court seeking leave to appeal. The draft notice of appeal sought to have the Court quash order 3 made in the Division and dismiss the practitioner's summons, with costs. The precise effect of order 3 made by the primary judge was the subject of debate in this Court. That difficulty may have been reflected in the imprecision of the sole ground of appeal, which read: "The primary judge erred in quashing the decision of the Director of Proceedings to allege, in disciplinary proceedings before the Civil and Administrative Tribunal under the Health Practitioner Regulation National Law (NSW), that the respondent was guilty of professional misconduct on the ground that the decision was legally unreasonable."
3. The proposed ground resolved one issue, namely the basis upon which, at least in the view of the Commission, the primary judge had quashed the decision. The submissions in this Court led to a discussion as to the statutory basis of the "decision" and the basis upon which the Supreme Court was empowered to intervene in the prosecution of disciplinary proceedings before the Tribunal. Although the latter question had arisen before the primary judge, it was not addressed in written submissions filed in this Court prior to the concurrent hearing of the application for leave to appeal and the appeal. As the issue raised a question of the jurisdiction being exercised by the primary judge and, consequently, the jurisdiction of this Court on an appeal by way of rehearing, the parties were granted leave to file further written submissions addressing that issue. The further submissions have been of considerable assistance to the Court and refined the nature of the jurisdictional issue.

Proceedings before the primary judge

1. Although there is no notice of contention seeking to rely upon grounds and forms of relief rejected by the primary judge, to appreciate the scope of the issues addressed in the judgment, it is convenient to set out the form of the orders sought by the practitioner in his further amended summons, which read as follows: "1 A declaration that the decision of the [Commission] to refer the complaint to the Director of Proceedings pursuant to s 39(1)(a) of the Health Care Complaints Act 1993 (NSW) is void and of no effect. 2 A declaration that the decision of the Director of Proceedings to prosecute the complaint against the [practitioner] in the NSW Civil and Administrative Tribunal … pursuant to s 90B(1) of the Health Care Complaints Act … is void and of no effect. 3 A declaration that the proceedings commenced on 9 July 2020 by the Defendant to prosecute the complaint against the [practitioner] in the Tribunal purportedly pursuant to s 90B(1) of the Health Care Complaints Act … is a nullity as the [Commission] had no power in law to commence proceedings in the Tribunal. 4 Further, or in the alternative to Prayer 3, a declaration that proceedings commenced on 9 July 2020 by the [Commission] to prosecute the complaint against the Plaintiff in the Tribunal purportedly pursuant to s 90B(1) of the Health Care Complaints Act … is a nullity as the Tribunal is not a 'disciplinary body' for the purposes of the Health Care Complaints Act …. 5 An order in the nature of certiorari quashing the decision of the [Commission] to refer the complaint to the Director of Proceedings pursuant to s 39(1)(a) of the Health Care Complaints Act …. 6 Or in the alternative to Prayer 5 an order in the nature of certiorari quashing the decision of the Director of Proceedings to prosecute the complaint against the plaintiff in the … Tribunal … pursuant to s 90B(1) of the Health Care Complaints Act …. 7 A permanent injunction restraining the [Commission] from taking any steps to continue the proceedings in the Tribunal." It may be noted that order 3 did not precisely follow the terms of the relief sought.

Disciplinary proceedings - statutory scheme

1. As appears from the relief sought (set out in the preceding paragraph) the matters in issue concerned the scope of the powers of the Commission and its officers as provided by the Health Care Complaints Act 1993 (NSW). The Commission is established as a body corporate under Pt 5 of the Health Care Complaints Act: s 75(1). Section 75(3) provides that "[s]ubject to section 90B, the functions of the Commission are exercisable by the Commissioner." The Commission is identified as a statutory body representing the Crown: s 75(2). The Commissioner is appointed by the Governor: s 76(1).
2. The Commission has a range of functions, conferring on it a broad regulatory role in relation to the provision of health services. Section 3A(2) of the Act states that "[t]he 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 relevant professional councils." Relevantly for present purposes, the functions include the following: 80 Functions of Commission (1) The Commission has the following functions - (a) to receive and deal under this Act with the following complaints - • complaints relating to the professional conduct of health practitioners • complaints relating to a relevant health organisation, including an alleged breach by a relevant health organisation of a code of conduct prescribed by the regulations made under section 100(1)(c) of the Public Health Act 2010 • complaints concerning a health service that affects, or is likely to affect, the clinical management or care of individual clients • complaints referred to it by a professional council under the Health Practitioner Regulation National Law (NSW), (b) to assess those complaints and, in appropriate cases, to investigate them, refer them for conciliation or deal with them under Division 9 of Part 2, (c) to make complaints concerning the professional conduct of health practitioners and to prosecute those complaints before the appropriate bodies, including professional councils, professional standards committees and tribunals, ….
3. Although the Commission is a statutory body representing the Crown, ministerial control is limited in the following respects: 81 Ministerial control The Commission is subject to the control and direction of the Minister, except in respect of the following - • the assessment of a complaint • the investigation of a complaint • the prosecution of disciplinary action against a person • the terms of any recommendation of the Commission • the contents of a report of the Commission, including the annual report.

Making complaints

1. In the orders sought before the primary judge, the first challenge was directed to the decision of the Commission, following investigation of a complaint, to refer the "complaint" to the Director of Proceedings, pursuant to s 39(1)(a) of the Health Care Complaints Act. The term "complaint" is defined in s 4 to mean "a complaint made under this Act or a complaint made under another Act that is able to be dealt with by the Commission under this Act".
2. Pursuant to ss 7 and 8, a complaint may be made by any person, including a patient (referred to as a "client"), a health service provider or a representative of a patient. The complaint may concern the professional conduct of a health practitioner (s 7(1)(a)), and may be made by lodging the complaint in writing with the Commission: s 9(1). The Commissioner may also make a complaint, but only with respect to what may be broadly described as serious matters: s 8(2). The present case involved a complaint made to the Commission under the Health Care Complaints Act. The power to make complaints is conferred, not only by the Health Care Complaints Act, but also by the National Law, Pt 8, Div 3, Subdiv 1. In particular, s 144B(2) of the National Law provides that a complaint may be made by "a Council" which includes the Medical Council of New South Wales.
3. Although it is commonplace for patients to complain directly to the Commission, that was not what happened in the present case. The complaint before the Commission was made by the Medical Director of the Medical Council of New South Wales and thus came from the Medical Council. The complaint made by the Medical Council was dated 11 February 2019 and enclosed a letter from the Chief Executive Officer of the Mater Hospital in North Sydney. That letter, dated 7 December 2018, was addressed to a colorectal surgeon, terminating his accreditation at Mater Hospital. The matters raised in the letter involved the surgeon's role in inviting the practitioner, being the anaesthetist engaged in a procedure at the Hospital, to put on a glove and feel the patient's rectal tumour. The practitioner did so and the surgeon took a photo on his mobile phone of the anaesthetist undertaking the examination and said he would send it to the practitioner's anaesthetic colleagues. The Medical Council considered that the letter revealed conduct on the part of the practitioner which caused concern. The documents were sent by the Commission to the practitioner (the anaesthetist referred to in the letter), seeking a written response.

Functions of Director of Proceedings

1. The Director of Proceedings is an office to which the Commission is obliged to appoint a member of its staff: Health Care Complaints Act, s 90A. The functions of the Director include the prosecution of complaints before a disciplinary body. Relevant matters to be taken into account in deciding whether to prosecute a complaint are prescribed in s 90C. It is the interplay between these provisions and specific aspects of the National Law which lie at the heart of the practitioner's case. The relevant parts of these provisions should be set out: 90B Functions of Director of Proceedings (1) The following functions of the Commission are to be exercised only by the Director of Proceedings in relation to any complaint referred to the Director by the Commission - (a) to determine whether the complaint should be prosecuted before a disciplinary body and, if so, whether it should be prosecuted by the Commission or referred to another person or body for prosecution, (a1) if the Director determines that the complaint should be prosecuted before a disciplinary body by the Commission, to prosecute the complaint before the disciplinary body, (b) to intervene in any proceedings that may be taken before a disciplinary body in relation to the complaint. (2) In addition, the Director of Proceedings has any other functions conferred or imposed on the Director by or under this or any other Act. (2A) Without limiting subsection (2), the Director of Proceedings may exercise any other functions conferred or imposed on the Commission by another Act and delegated to the Director under section 84. (3) The Director of Proceedings - (a) may at any time consult with a professional council in relation to the exercise of any of the Director's functions, and (b) must consult with the appropriate professional council (if any) before determining whether or not a complaint should be prosecuted before a disciplinary body. (3A) If the Director determines that a complaint should not be prosecuted before a disciplinary body, the Director may refer the complaint back to the Commission for action to be taken under section 39(1)(c)-(g). … 90C Criteria relevant to determinations of Director of Proceedings (1) The Director of Proceedings is to take into account the following matters when making a determination as to whether or not a complaint should be prosecuted before a disciplinary body - (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 section 40 by the health practitioner concerned.

Powers of the Tribunal

1. Although the practitioner was adamant that his challenge to the decision of the Director to prosecute the complaint in the Tribunal was one to which the powers and functions of the Tribunal were irrelevant, that submission cannot be accepted. For example, to conclude that a decision to commence proceedings was legally unreasonable would be tantamount to saying it was unsupportable on the evidence or other relevant material, and thus constituted an abuse of the process of the Tribunal. If the Tribunal has power to deal with abuse of its own processes by staying or dismissing the proceeding, there would be a basis for inferring that the decision of the prosecutor was not reviewable on that ground. Alternatively, it would be possible to contend that the court should not exercise functions of judicial review until the Tribunal had had an opportunity to consider that matter for itself. The decision of the Tribunal might then be open to appeal or review. In that situation, judicial review might be refused on a discretionary basis, as when a plaintiff seeks to invoke the supervisory jurisdiction in disregard of a right of appeal.
2. Provisions governing practice and procedure in the Tribunal are found in Pt 4 of the Civil and Administrative Tribunal Act 2013 (NSW) ("Tribunal Act"). Those principles include the "guiding principle" for the Act and rules, namely "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 36(1). Section 38 frees the Tribunal from any suggestion it might be bound by the rules of evidence and allows it to "inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice": s 38(2). It is also required to act "with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms": s 38(4). Importantly for present purposes, s 55 provides: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings. (2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers that there is a reasonable explanation for that failure.

Role of judicial review

1. The activities of the Commission do not enjoy the protection of a privative provision. However, even if they did, that would merely be a factor to be taken into account in resolving any apparent inconsistency between the conferral of limited statutory powers and the protection of the decision-maker from judicial review of the exercise of those powers. [4] The question of statutory construction may be more broadly formulated, as in Project Blue Sky Inc v Australian Broadcasting Authority, [5] as "whether it was a purpose of the legislation that an act done in breach of the provision should be invalid." The joint reasons in Project Blue Sky further stated at [95]: "When a legislative provision directs that a power or function be carried out in accordance with matters of policy, ordinarily the better conclusion is that the direction goes to the administration of a power or function rather than to its validity."
2. Such considerations are essentially contextual. As the High Court explained in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [6] in relation to an adjudication under the Building and Construction Industries Security of Payment Act 1999 (NSW): "34 An intention to alter the settled and familiar role of the superior courts must be clearly expressed. But the question is a matter of statutory construction; and in the resolution of such a question, context is, as always, important. The Security of Payment Act contains no privative clause providing in terms that an adjudicator's determination is not to be quashed by way of certiorari on the basis of error of law on the face of the record. But that is not the end of the inquiry. There remains for consideration the question whether, absent an express statement but read as a whole, the Security of Payment Act has that effect. Whether it does depend on examination of the text, context and purpose of the Security of Payment Act. In undertaking that process, '[w]hether and when the decision of an inferior court or other decision-maker should be treated as "final" (in the sense of immune from review for error of law) cannot be determined without regard to a wider statutory and constitutional context'." (Footnotes omitted.)
3. Decisions made by the Director of Proceedings with the Commission are not decisions of any court or tribunal; rather, they are decisions to invoke the jurisdiction of a tribunal. Although the Tribunal is not a judicial body for the purposes of Ch III of the Commonwealth Constitution, it is a body exercising judicial functions. In the present case, it has the power to suspend or cancel the registration of a medical practitioner. In so acting, it is not exercising any domestic or private power based on contract, but a public function of the State of New South Wales. For the Supreme Court to intervene in a manner which effectively prevents the Tribunal from exercising its statutory powers because a judge of the court is of opinion that proceedings should not have been commenced is a troubling proposition. The Director of Proceedings is established as an independent authority outside ministerial control. In that sense, the functions of the office are analogous to those of the Director of Public Prosecutions in relation to criminal proceedings. In that jurisdiction, the position was described by Gaudron and Gummow JJ in Maxwell v The Queen [7] in the following terms: "The power of the Attorney-General and of the Director of Public Prosecutions to enter a nolle prosequi and that of a prosecutor to decline to offer evidence are aspects of what is commonly referred to as 'the prosecutorial discretion'. In earlier times, the discretion was seen as part of the prerogative of the Crown and, thus, as unreviewable by the courts. That approach may not pay sufficient regard to the statutory office of Director of Public Prosecutions which now exists in all States and Territories and in the Commonwealth. Similarly, it may pay insufficient regard to the fact that some discretions are conferred by statute, such as that conferred on the prosecutor by s 394A of the [Crimes Act 1900 (NSW) relating to pleading to alternative offences]. It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what."

A more limited conclusion

1. It is, however, possible to dispose of the present proceedings on a more constrained basis. Order 3 purported to quash the decision of the Director to prosecute the practitioner "for professional misconduct". As the primary judge made clear in her reasons for judgment, she was not persuaded that a decision to prosecute for unsatisfactory professional misconduct was legally unreasonable. There are two problems with formulating the order in this way. First, as the relief recognised, in my view correctly, the decision was "to prosecute the complaint against the [practitioner] in the [Tribunal]". The act of commencing proceedings was either valid or it was not. There was no basis in judicial review to say that the decision was valid in so far as it characterised the misconduct in one way, but not in so far as it characterised misconduct in another. The decision was not a curate's egg, partly good and partly bad. The decision was either invalid in whole, but for a specific reason, or it was not invalid. On that basis, order 3 cannot stand.
2. There is a further reason why order 3 cannot stand. The decision of the Director was not open to relief in the nature of certiorari because it had no relevant effect on the legal rights of the practitioner in the way described by the joint reasons in Hot Holdings set out at [48] above. The relevant decision-maker, with power to affect the rights of the practitioner, was the Tribunal.
3. The Director made no finding of fact, nor could she. She had no power to interfere with the registration of the practitioner. Her function was to draw to the attention of the Tribunal matters on the basis of which it might take one of the steps available to it, including steps which would affect the rights of the practitioner. Even a finding of unsatisfactory professional conduct would affect the legal rights of the practitioner, but the Director had no power to make even that finding, let alone a consequential order affecting the registration of the practitioner.
4. Finally, the order may be characterised as based upon a point of pleading. Where there is sufficient basis to strike out so much of the application as alleged professional misconduct, it was open to the Tribunal to take that step on the application of the practitioner. No such application was made. Even if all the foregoing reasoning were considered questionable, in my view the present proceedings should have been dismissed on that basis in the exercise of the Court's discretion.

Merits of claims before primary judge

1. In these circumstances, the primary judge lacked jurisdiction to make order 3. The characterisation of the conduct was a matter for the Tribunal; the characterisation in the application did no more than identify the view for which the Director proposed to contend in the Tribunal. This Court equally lacks jurisdiction to consider the justification for that view. While the impugned decision does not appear to be legally unreasonable, it is neither desirable nor appropriate to embark on an exercise which is beyond the jurisdiction of the Court, against the possibility that that view may be in error.

Conclusions

1. The proper course is to allow the Commission's appeal and set aside the judgment below. That conclusion may be reflected in the following orders: 1. Grant the applicant Commission leave to appeal from the judgment in the Common Law Division delivered on 16 December 2021. 2. Allow the appeal and set aside orders 3, 4 and 5 made in the Common Law Division on 16 December 2021. 3. In place thereof make the following orders: 1. Dismiss the amended summons. 2. Order that the plaintiff pay the first defendant's costs of the proceedings in the Division. 1. Order that the respondent pay the Commission's costs in this Court.

Endnotes

1. National Law, Sch 5D, cl 11.
2. Hill v Health Care Complaints Commission [2021] NSWSC 1645 ("Hill").
3. See Uniform Civil Procedure Rules 2005 (NSW), r 13.4; Batistatos v Roads and Trafic Authority of NSW (2006) 226 CLR 256; [2006] HCA 27 at [9]-[16] (Gleeson CJ, Gummow, Hayne and Crennan JJ).
4. The King v Hickman; Ex parte Fox (1945) 70 CLR 598 at 615-616 (Dixon J); [1945] HCA 53; and, in the State sphere Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; [2003] HCA 2 at [17], [19] (Gleeson CJ), [71]-[73] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
5. (1998) 194 CLR 355; [1998] HCA 28 at [93] (McHugh, Gummow, Kirby and Hayne JJ).
6. (2018) 264 CLR 1; [2018] HCA 4.
7. (1996) 184 CLR 501 at 534; [1996] HCA 46.
8. [2018] NSWCA 247.
9. Levitt at [94].
10. [2000] HCA 2; 74 ALJR 419.
11. Barwick at [7] (Gleeson CJ, Gaudron and McHugh JJ).
12. [2004] NSWCA 422.
13. Woolworths v Pallas Newco at [49]-[50].
14. (1996) 185 CLR 149 at 159 (Brennan CJ, Gaudron and Gummow JJ); [1996] HCA 44.
15. Hill at [193].
16. Hot Holdings at 159.
17. Hot Holdings at 165.
18. Hot Holdings at 179.
19. Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 at 321G-322D (Moffitt P)
20. National Law, s 3A. 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: 15 December 2022