Health Care Complaints Commission v Kaye

Mr Kaye's evidence

1. Mr Kaye relied on an affidavit of Ms Genevieve Mary Hehir sworn 26 November 2021. In summary, Ms Hehir says that: 1. in August 2020, a client of hers sought a review of a decision by the Pharmacy Council of New South Wales (Council) to suspend his registration as a pharmacist; 2. I was a member of the panel convened by the Council which heard her client's application seeking a review of a decision pursuant to s 150A of the Health Practitioner Regulation National Law (NSW) (National Law) and was present during the hearing which occurred via an audio-visual conference; 3. on 4 December 2021, she received the list of panel members for the hearing of this matter. It did not occur to her that I was the same person who was present at her previous client's hearing before the Council in 2020 as, during that hearing, my face was covered by a mask; 4. during the second day of the hearing on 6 November 2021 I asked a question, and it was upon hearing my voice that Ms Hehir recognised me as being the same person who formed part of her other client's review panel in 2020; 5. Ms Hehir then relocated her client's files to confirm the names to ensure that they referred to the same person; 6. her research has revealed that I am a member of the Performance Review Panel (PRP) of the Council.
2. The affidavit then goes on to set out an exchange that took place between Mr Kaye's counsel and the Tribunal during the Stage 1 hearing. During that exchange, I confirmed, through the Presiding Member, that I was a member of the PRP of the Council.
3. As to the matters deposed to by Ms Hehir in 10 to (4), I cannot comment as the client is not identified. However, I will assume for the purpose of these reasons that what she says is correct.

Mr Kaye's submissions

1. By way of introduction, My Kaye seeks my recusal on the grounds of apprehended bias. There is no suggestion that I am actually biased.
2. My Kaye submits, and I accept, that the relevant principles regarding an apprehension of bias are set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ at [6]-[8].
3. Mr Kaye correctly submits that the objective test directs inquiry into whether a fair-minded observer might reasonably apprehend that I might not bring an impartial mind to the resolution of matters to be determined at stage 2 of these proceedings. The test is one of possibility not probability.
4. Mr Kaye submits that, applying that objective test, there is a real possibility of an apprehension of bias on my part having regard to: 1. my association with the Council; 2. the nature of the allegations made him in these proceedings involving conduct directed to and concerning the Council; 3. the Council's role in initiating, investigating and prosecuting complaints against him which are now the subject of these proceedings by the Commission; 4. the other matters set out below.
5. In addition to Ms Hehir's affidavit, sworn 26 November 2021 and the exhibit marked "GMH-1", Mr Kaye's submissions also refer to the Commission's bundle of documents filed in the Tribunal titled "Health Care Complaints Commission's Brief of Evidence".

Ebner - the first question

1. Mr Kaye submits, and I accept, that the first question to be answered is what is the factual foundation for the apprehension that I might decide the application other than on its legal and factual merits.
2. Mr Kaye submits that the following factual matters are relevant: 1. I have been a panel member of the PRP since at least 1 July 2018; 2. I remain a panel member of the PRP; 3. the conduct alleged against Mr Kaye in these proceedings includes an allegation that Mr Kaye made false and misleading statements to the Council; 4. the Commission in its Amended Application alleges that statements made on or on behalf of Mr Kaye to the Council on 5 February 2020 and 25 September 2020 (collectively, the Statements) involved the provision of false and/or misleading information to the Council; 5. the Statements occurred in the context of the Council: 1. having undertaken an investigation of Mr Kaye's pharmacy at Toongabbie following which it initiated a complaint against Mr Kaye on 23 January 2020 alleging that Mr Kaye was carrying on a pharmacy business in premises not subject to current approval by the Pharmacy Council (Complaint 1); 2. having received a complaint that Mr Kaye had permitted his Quakers Hill pharmacy to operate without the presence of a pharmacist on 18 January 2020 and as well as by reference to undated similar, previous occurrences (Complaint 2); 3. determining in the light of Complaints 1 and 2 that it may seek to exercise its power under s 150 of the National Law to suspend Mr Kaye, and seeking his submissions in respect of its exercise of that power (in the case of the 5 February 2020 statement); and 4. negotiating with Mr Kaye on the contents of an agreed statement of facts for use in criminal proceedings brought by the Pharmacy Council against Mr Kaye (in the case of the 25 September 2020 statement). 1. I did not disclose to the parties my affiliation with the Council until the course of closing submissions, and even then, only when the issue was raised by Mr Kaye's counsel; 2. when the issue was raised, I did not advise the parties that, despite my involvement with the Council, I had no personal involvement in, or knowledge of, the complaint, investigation and/or prosecution of the matters that are the subject of these proceedings (other than by reason of his involvement as a member of the Tribunal hearing these proceedings), and that I provided no such confirmation at any time during the hearing of Stage 1.

Ebner - the second question

1. Mr Kaye submits, and I accept, that the second question to be answered is what is the logical connection between the relevant factual matters set out above and the feared deviation from the course of deciding the case on its merits.
2. Mr Kaye says that the logical connection is provided in the following ways.
3. First, he submits that there is a close connection between the Council and the Commission. Mr Kaye submits that there is a close regulatory relationship between the two organisations. Under the National Law and the Health Care Complaints Act 1993 (NSW) (HCC Act): 1. complaints about a pharmacist may be made to the Council or the Commission (National Law, s 144C); 2. if a complaint about a pharmacist is made by or to the Council about a pharmacist it must notify, inter alia, the Commission as soon as practicable (National Law, s 144G(a)) and similarly if a complaint is made about a pharmacist to the Commission it must notify the Pharmacy Council of the complaint (HCC Act, s 10); 3. before an action is taken on a complaint the Council and the Commission must consult with one another about the course of action to be taken concerning the complaint (National Law, s 145A; HCC Act, s 12(1)); and 4. upon receipt of a complaint the Council can investigate the complaint and/or refer the complaint to the Commission (National Law, ss 145B(1)(a), (b)).
4. Secondly, Mr Kaye submits that the Council and the Commission share a unity of purpose in regulating pharmacists, and share a regulatory purpose of maintaining high professional standards of pharmacists (among other health professionals in the case of the Commission) and protecting public health and safety in the discharge of their respective powers (National Law, s 3A).
5. Thirdly, Mr Kaye further submits that there is an "obvious close practical connection" between the two organisations in the course of the discharge of their respective roles. He submits that in the present case the Council acting as prosecutor of Mr Kaye in the criminal proceedings it brought against him worked closely with the Commission in procuring from the Commission the necessary evidence to answer the representations made on Mr Kaye's behalf in the 25 September 2020 email.
6. Fourthly, Mr Kaye then submits that parts of Complaint Two relate to statements made by Mr Kaye to the Council that are alleged to be false and/or misleading. This circumstance answers the description of the first category described by Deane J in Webb v The Queen (1994) 181 CLR 41 at [74], namely where there is some "indirect interest" in the proceedings, whether pecuniary or otherwise, that gives rise to a reasonable apprehension of prejudice, partiality or prejudgment.
7. In the present case, it is submitted that: 1. I am sitting as a member of the Tribunal determining matters pertaining to whether such alleged conduct against the Council occurred and most importantly the likely consequences to flow if such conduct did occur; 2. I do so in circumstances where I am associated with the very same organisation to which the Statements were addressed; 3. by reason of my position at the Council, a fair-minded lay observer may reasonably apprehend that I have than a tangential interest in the proceedings such as to give rise to a reasonable apprehension of partiality. As the interest need only be "indirect" it is immaterial that the PRP may not itself investigate complaints that may later be referred (by either the Council or the Commission) for determination by the Tribunal.

The Commission's submissions

1. The Commission adopted a neutral position in respect of the application. It provided submissions limited to the identification of certain matters which I should or should not take into account in determining the recusal application.
2. In summary, the Commission submitted: 1. in considering whether the matters raised by Mr Kaye satisfy the test for apprehended bias, it is necessary to take into account the statutory context: Murlan Consulting v Ku-Ring-Gai Municipal Council (2009) 170 LGERA 162 at [27]; McGovern v Ku-Ring-Gai Council [2008] NSWCA 209; 72 NSWLR 504 at [6]-[8]; 2. in particular, it is necessary to consider the nature of my role as a member of a PRP and as member of the Tribunal. Both roles are governed by the National Law; 3. section 174(1) of the National Law provides that PRPs are to be established and s 174A governs their composition. Under s 174A(1), if a council (which includes the Council) decides to require a PRP to conduct a performance review of the professional performance of a registered health practitioner it must appoint three persons to sit as the Panel, and under s 174A(2)(a) two of those persons are to be registered health practitioners in the same health profession as the practitioner to whom the proceedings relate. Under s 174A(5), a person may be appointed to a PRP whether or not they are a member of a council, but not if they have previously dealt with the particular matter as a member of the council; 4. section 165B of the National Law provides that in respect of a complaint dealt with by the Tribunal, the relevant council must select three persons to sit as members of the Tribunal, two of whom are registered in the same health profession as the health practitioner the subject of the complaint: ss 165(B)(1)(b) and 165(B)(2)(b). Under s 165B(6), a member of the Council cannot be selected to sit on the Tribunal; 5. the statutory scheme therefore imposes upon the Council equivalent duties to appoint registered pharmacists to sit as members of a PRP and registered pharmacists to sit as members of the Tribunal. There is no express restriction on a pharmacist who has been appointed to a PRP being appointed as a member of the Tribunal (save that a member of the Council can be a member of the PRP but not the Tribunal). Indeed, it might reasonably have been expected by the legislature, and would be understood by the hypothetical fair-minded lay observer, that the Council would maintain a pool of pharmacists of sufficient standing to act as members of a PRP or the Tribunal as the need arose; 6. mere prior appointment to a PRP cannot amount to a sufficient "association" with the Council to give rise to a reasonable apprehension of bias precluding appointment of the same pharmacist to the Tribunal in an unrelated case. For any question of apprehended bias on the basis of association (or interest) to arise for consideration, my association with the Council would need to go beyond mere prior appointment to a PRP.
3. In addition to those submissions, the Commission also submits that non-disclosure of my "affiliation" with the Council and a failure to disclaim any prior personal involvement in, or knowledge of, Mr Kaye's matter are irrelevant considerations in the context of the recusal application.

Mr Kaye's submissions in reply

1. In brief submissions in reply, Mr Kaye submitted that: 1. there is nothing in the statutory scheme of the National Law that excludes the obligation of procedural fairness to avoid circumstances which would give rise to a reasonable apprehension of bias: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 at [25]; CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at [53]; 2. a member of the PRP is not expressly excluded from being appointed as a member of the Tribunal does not obviate the need for that member to observe the requirements of procedural fairness, including the rule against bias. Whether a member of the Tribunal (who may also be member of the PRP) is affected by an apprehension of bias falls to be determined by the usual application of the test in Ebner; 3. his concern with my association with the Pharmacy Council is not only with respect to my "mere prior appointment to the PRP" but also that I have an ongoing membership of the PRP, and thus through it, the Pharmacy Council, whilst also being a member of the Tribunal presiding in a matter in which allegations of misleading the Pharmacy Council are to be determined; 4. he accepts, as was held in Ebner, that the practice of disclosing an association or affiliation that might give rise to a reasonable apprehension of bias is not a matter of 'right' or 'duty' and the fundamental question is whether the reasonable apprehension of bias test is established: Ebner, at [71]. Nonetheless, it is prudent practice to disclose any potentially disqualifying interest: Ebner, at [68], especially in circumstances where a current member of the PRP is not expressly restricted from being appointed as a member of the Tribunal. It is prudent because inter alia "[a] failure to disclose no matter how unwitting, can undermine public confidence in the integrity of, and the administration of justice by, the judicial officer or the tribunal concerned": Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd 65 FCR 215 at 221D; 5. although there is no duty on a decision maker to disclose any potentially disqualifying interest, a failure to disclose is relevant because it may cast some evidentiary light, together with other factors, on the ultimate question of whether there is reasonable apprehension of bias on the part of that decision maker: Ebner, at [70]; 6. every case depends upon its own facts and proof of facts sufficient to satisfy the test may be established in many ways, including by the use of circumstantial evidence: Gascor v Ellicott [1997] 1 VR 332 at 361 per Ormiston JA (cited in Ebner, at [70] fn 76); 7. my non-disclosure of my association with the Pharmacy Council by reason of my membership of the PRP at the commencement of the proceedings or at any time during the hearing of evidence until enquiry by Mr Kaye's counsel was made, and my failure to disclose at any time during the Stage 1 hearing whether I had any involvement in, or knowledge of, the complaint, investigation and/or prosecution of matters relating to Mr Kaye that are the subject of these proceedings are circumstantial facts. Such circumstantial facts are relevant to an assessment of whether there is a factual foundation for the apprehension of bias and whether those circumstantial facts give rise to a reasonable apprehension of bias relevantly in the second category of case described by Deane J in Webb v The Queen (1994) 181 CLR 41 at 74; 8. what are described as my non-disclosures are not irrelevant considerations and are material circumstantial facts relevant to the application of the test of apprehended bias in Ebner.

Consideration

1. Mr Kaye seeks my recusal on the grounds of apprehended bias and does not suggest that I am actually biased. Using the relevant principles in Ebner, I note that my association with the Council involves being a panel member of the PRP; as an occasional delegate of the Council during hearings under s 150 of the National Law; and as an appointed Performance Assessor.
2. The Council selects and appoints the persons to sit on the PRP as well as for the hearings held under s 150 of the National Law. In a similar way, the Council selects persons to sit as members of the Tribunal. At various times, I have been appointed by the Council to sit on Tribunals, PRPs and hearings under s 150 of the National Law. I have never been a member of the Council. I do not have any other involvement with the Council besides the aforementioned list. I reject My Kaye's submission that my involvement with the Council would suggest that I might not bring an impartial mind to the resolution of matters to be determined at Stage 2 of these proceedings. The fact that Mr Kaye does not submit that I recuse myself from the Stage 1 of the proceedings suggests that he is satisfied that I am capable of bringing an impartial mind to Stage 1 of the proceedings and there are no grounds for apprehension of bias.
3. In my view, my prior appointment to a PRP cannot amount to a sufficient "association" with the Council to give rise to a reasonable apprehension of bias precluding my appointment to the Tribunal in an unrelated case conducted by the Commission. In this respect, I accept the Tribunal's submission that for any question of apprehended bias on the basis of association (or interest) to arise for consideration, my association with the Council would need to go beyond mere prior appointment to a PRP.
4. It follows I reject the submission that by reason of my being appointed by the Council to sit on Tribunals, PRPs and hearings under s 150 of the National Law, a fair-minded lay observer may reasonably apprehend that I have than a tangential interest in the proceedings such as to give rise to a reasonable apprehension of partiality.
5. I note that in Holt v Dental Council of New South Wales [2020] NSWCATOD 62, in the context of an appeal from a s 150 decision of the Dental Council, the Tribunal considered a submission that a decision of Council delegates was affected by apprehended bias because the Chair of the committee of delegates and the appellant as students were both passengers in a motor vehicle which was involved in an accident and that there had been a difference between them about legal action which the appellant had taken against the driver.
6. The Tribunal noted at [61] that the Chair did not at any stage of the proceedings indicate that she had known the appellant while they were students, and commented that it might be thought that it would have been prudent for the Chair to have disclosed this fact at the commencement of the proceedings and then announce, assuming she was so inclined, that she did not intend to recuse herself. But the Tribunal then observed that the omission to make reference to this was not necessarily fatal to the integrity of the proceedings, noting that in Ebner the plurality stated: 71 To describe the practice of making disclosure as a matter of right or duty may distract attention from the fundamental question to be answered which is whether the reasonable apprehension of bias test is established. That question will be litigated on appeal from the substantive decision in the matter or in proceedings for prohibition, certiorari or similar relief. Whatever the process which the person alleging reasonable apprehension of bias may adopt, there will, in those proceedings, be a full opportunity to make whatever case for disqualification of the judge the moving party can. Inquiring whether the moving party was denied some opportunity to make submissions on the question of disqualification to the judge in question is irrelevant. The question of disqualification can and will be litigated fully in the appeal or application for prerogative or like relief and no separate question of denial of procedural fairness could arise. The point can be illustrated by what happened in Clenae. The fact that the judge did not disclose his shareholding gives no different or additional right to the present appellants. All that they were denied by the fact that there was no disclosure was an opportunity to put an argument which we consider must fail. 72 Disclosure of association may raise more difficult questions than are presented by the straightforward case of ownership of shares in a corporation. It is impossible to identify all of the kinds of association which might be thought to reveal a serious possibility of being potentially disqualifying. As we have said earlier, the application of the apprehension of bias principle requires identification of what it is said might lead a judge to decide a case other than on its legal and factual merits, and the articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.
7. The Tribunal concluded at [62] that given that there was no evidentiary basis for concluding that there was actual bias or apprehended bias on the part of the Chair, and that her failure to draw attention to a past association with the appellant had no impact upon the determination of this issue. In the circumstances, the Tribunal rejected this submission on the basis that no bias whether actual or apprehended had been established against the Chair.
8. So too here I am satisfied that there is no factual basis for the claim of apprehended bias.

Other

1. Finally, I note that this was an application for me to recuse myself from the Stage 2 proceedings only. Mr Kaye though his counsel submitted during the course of the oral submissions that, given Mr Kaye had admitted the complaints the subject of the proceedings, no objection would be taken to me participating in the Stage 1 proceedings and reasons.
2. I am not certain that that would have been an appropriate course to take if I had decided to recuse myself. Some may consider that once affected by apprehended bias, I could not participate in any part of the proceedings. However, as I have decided not to recuse myself it is not necessary to decide that point.

Conclusion

1. I am satisfied this application to recuse myself from Stage 2 of the proceedings should be dismissed.

Orders

1. The Tribunal orders: 1. A hearing be dispensed with. 2. The application that Senior Member Chen recuse himself from the Stage 2 hearing is dismissed.

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: 25 February 2022