Health Care Complaints Commission v King [2024] NSWCATOD 111 | Case summary

NCAT Occupational|2024-07-24

Background

By application dated 12 April 2024, the applicant seeks disciplinary findings and orders in relation to the respondent. The complaint filed with the application (the Complaint) alleges (amongst other matters) that the respondent, formerly an enrolled nurse registered under the Health Practitioner Regulation National Law (NSW) 2009 (National Law), has been convicted of criminal offences in New South Wales. The respondent seeks orders to the effect that if the respondent were still registered, the Tribunal would have cancelled her registration.
By orders dated 26 April 2024, the matter was given a timetable for progressing to hearing and listed for hearing for 2 days commencing 29 July 2024. However, the applicant now has concerns that the application and the materials relied upon have not been received by the respondent. Despite the proximity of the hearing, the applicant seeks an order for substituted service; and if necessary in the interests of fairness to the respondent, to vacate the hearing listed to commence next week.
As a result of my decision to grant the application for substituted service, it is indeed necessary to vacate the hearing and list the matter for directions. At the next directions hearing, the applicant should be in a position to update the Tribunal about the state of service of the application and materials and any response from the respondent.

Relevant provisions

There is no particular rule for service of applications such as this under the National Law. There is no requirement for personal service of the application in the Tribunal.
The Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) provide for service of documents. Rule 13(2) states as follows: 13 Service, giving and lodgement of notices or documents … (2) Means for service or giving of notices and documents A notice or document may be served on or given to a person or body - (a) by means of personal service, or (b) by posting a copy of the notice or document, addressed to the person or body - (i) to the person's or body's address for service, or (ii) if the person or body does not have an address for service, to the person's or body's business or residential address (or the business or residential address last known to the person or body serving the notice or document), or (c) by leaving a copy of the notice or document, addressed to the person or body - (i) at the person's or body's address for service, or (ii) if the person does not have an address for service, at the person's or body's business or residential address (or the business or residential address last known to the person or body serving the notice or document), or (d) in the case of a Government Department - by leaving a copy of the notice or document at, or by posting the notice or document to, any office of that Department addressed to the head of the Government Department, or (e) in the case of a person or body whose address for service includes a DX address in New South Wales - by leaving a copy of the notice or document, addressed to the person or body, in the DX box at that address or in another DX box for transmission to that DX box, or (f) in the case of a person or body that has consented to service by means of a fax sent to a fax number specified by the person or body - by faxing a copy of the notice or document, addressed to the person or body, to that fax number, or (g) in the case of a person or body that has consented to electronic service by means of an email address or mobile phone number specified by the person or body - by transmitting the notice or document in an electronic format, addressed to the person or body, to that address or number, or (h) in the case of service on a corporation - by serving a copy of the notice or document on the corporation in any manner in which service of such a notice or document may, by law, be served on the corporation, or (i) in such other manner as the Tribunal or a registrar may direct in a particular case.
Subrule 13(4) of the NCAT Rules identifies when a document is taken to have been served, if one of the above means has been used. With respect to electronic service, the timing of service is dictated by the Electronic Transactions Act 2000. 13A Time of receipt (1) For the purposes of a law of this jurisdiction, unless otherwise agreed between the originator and the addressee of an electronic communication - (a) the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee, or (b) the time of receipt of the electronic communication at another electronic address of the addressee is the time when both - (i) the electronic communication has become capable of being retrieved by the addressee at that address, and (ii) the addressee has become aware that the electronic communication has been sent to that address. (2) For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee's electronic address. (3) Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been received under section 13B.
Rule 15 of the NCAT Rules provides for substituted service: 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.

Consideration

Service to date has not been effective. Even though the NCAT Rules allow for documents to be posted or left at the last known residential address of the respondent, this has not been done.
The principles concerning substituted service in a matter arising under the National Law, were recently considered by the Tribunal in Health Care Complaints Commission v Rayamajhi [2024] NSWCATOD 107.
The Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that when the Tribunal is exercising a function for the purposes of the National Law, it is under a duty to observe the objectives and principles referred to in ss 3 and 3A of the National Law. This is in addition to s 36(5) of the NCAT Act which provides that the Tribunal is not to exercise any function conferred or imposed under enabling legislation, inconsistently with the objects or principles of that legislation.
The main guiding principle of the National Law is that the protection of the health and safety of the public must be the paramount consideration: National Law, s 3A(1). Further, the Tribunal is to progress any matter as expeditiously as possible: cl 11 of Sch 5D to the National Law. Keeping these firmly in mind, delay in progressing the matter (such as by vacating the imminent hearing) is to be avoided where possible.
Nevertheless, one of the guiding principles under the National Law is that the matter must be progressed in a fair manner: National Law, s 3A(2)(a). This includes giving the respondent a reasonable opportunity to be heard: see too s 38(5)(c) of the NCAT Act.
To this end, I am satisfied that it serves the objectives and principles of the National Law, for the Complaint to be progressed in the Tribunal as expeditiously as possible. However, late notice of the problems with service means that there must be delay. In circumstances such as this, where I am satisfied that the respondent has not received the application and materials, an order for substituted service must be considered.
Before making an order for substituted service, the Tribunal must be satisfied that service by the ordinary means is impractical. Even though the respondent has vacated her previous address, there is no evidence as to whether or not the respondent has a mail re-direction in place and so the Tribunal can't be satisfied that service by post is bound to fail. Nevertheless, it is not necessary to prove service is impossible before an order for substituted service will be made. In the circumstances, the Tribunal is satisfied that service by any of the stipulated means (r 13 of the NCAT Rules) is impractical. Further, the Tribunal is satisfied that despite the applicant making sufficient and genuine attempts to serve the materials by the usual means, this has not been efficacious. Whilst the applicant could have simply sent the application and materials by post to the (as then) known address, the additional lengths the applicant went to, to personally serve the material, proved that service by post was likely to fail.
Before any order for substituted service is made, it must be demonstrated that it is likely to be effective. From the material relied upon by the applicant, the Tribunal is satisfied that the respondent is capable of receiving emails. Further, at least on one occasion, she answered her phone. The Tribunal considers that emailing the application and associated materials including any necessary link to accommodate the size of the files will be efficacious. In order to facilitate this, a text should be sent to her mobile phone alerting her to the email and its contents. Out of abundant caution, the application and materials should be posted to the respondent's last known address.
Given the proximity of the hearing, it is also necessary to make an order to vacate the hearing and list the matter for directions.

Orders

The Tribunal orders: 1. In accordance with subrule 15(1) of the Civil and Administrative Tribunal Rules 2014 (NSW), service of the application and associated materials is to be by way of the respondent's email address along with a text to be sent to her mobile phone alerting her to the email in addition to sending the materials by post to her last known residential address. 2. In accordance with subrule 15(2) of Civil and Administrative Tribunal Rules 2014 (NSW), the application and associated materials are to be taken to have been served on the respondent once the application and associated materials have been served in accordance with Order 1 herein. 3. The hearing listed for 2 days from 29 July 2024 is vacated. 4. The matter is listed for directions at the next scheduled health list on 2 August 2024.

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 July 2024

Health Care Complaints Commission v King

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Judgment (6 paragraphs)

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