Health Care Complaints Commission v Luo

(1) in the headnote on p 1 next to the heading "Decision" at [2], the Tribunal sets out those Particulars of Complaint One that are found proven. In relation to Particular (11) of Complaint One the Tribunal records that Particulars (11)(a), (b) and (d) have been found proven. However, having regard to the Reasons for Decision in respect of Particular (11) of Complaint One, at [252] of the Decision, this paragraph should be corrected to record that the sub-Particulars of Particular (11) found proven are (11)(a), (c), (d) and (e);

(2) in the first sentence of [257] the Tribunal has recorded in respect of Particular (12) that it finds sub-Particulars (a), (c) and (d) established. In the second sentence the Tribunal states "We do not find Particular (12)(c) established as Dr Ee gave no opinion evidence about it". Having regard to the finding in the first sentence, and the reasoning in the second part of the second sentence, it appears that the second sentence should refer to Particular (12)(b);

(3) in [292] the Tribunal refers to its findings in respect of each of the Particulars to Complaint One in making its finding that the applicant has engaged in unsatisfactory professional conduct. In the fourth line of the first sentence it refers to Particulars (11)(a), (b) and (d); however, as set out at paragraph (a) above the Tribunal had found sub-Particulars (a), (c), (d) and (e) of Particular (11) proven. Accordingly, the reference in the fourth line of [292] should be corrected to refer to Particulars (11)(a), (c), (d) and (e).

(4) the same error in relation to the sub-Particulars of Particular (11) found proven is repeated:

(a) in the second line of [313]; and

(b) in [2] of the Orders recited at [322].

1. In both cases the reference to Particulars (11)(a), (b) and (d) should be corrected to Particulars (11)(a), (c), (d) and (e). The Commission submits that, in both cases, the reference to Particulars (11)(a), (b) and (d) should be corrected to Particulars (11)(a), (c), (d) and (e).
2. In addition, by amended submissions dated 10 March 2025, the Commission submits:

"8. Finally, the applicant draws the Tribunal's attention to an anomaly at paragraph [317] of the Decision where the Tribunal records its findings. At [317](8) the Tribunal records that it had found as follows:-

(8) on 7 June 2018, following a further home visit to Person B's home, the practitioner inadequately assessed the deterioration of Patient A's health, in that he failed to:

(a) appropriately assess the deterioration of Patient A's health as requiring urgent medical attention;

(b) recognise that the prescribed Chinese diet therapy and the Chinese herbal medicines to Patient A were no longer appropriate;

(c) reconsider his diagnosis and treatment plan of Patient A in light of Patient A's presenting conditions; and

(d) recommend Patient A be treated by a suitably qualified medical practitioner as a matter of urgency. (underlining added)

9. The underlined finding at 8(d) reflects the allegation set out at sub-particular (e) of Particular 12 of Complaint One - see paragraph [253] of the Decision referring in turn to paragraph [245]. However, at paragraph [257] of the Decision the Tribunal is silent about sub-particular 12(e), and makes no findings about it one way or another. In the circumstances the basis of including this sub-particular at paragraph [317](8) is uncertain. If it has been wrongly included at paragraph 317(8) then it appears amenable to being deleted, for example by application of s.63(1)(d);

10. The applicant is unable to discern whether the finding has been wrongly included at paragraph 317(8), or whether - in light of other typographical errors identified at paragraph (3) above - there has been an accidental omission of a reference to sub-particular 12(e) at other places in the decision. In either case the applicant invites the Tribunal to make such correction/s as is appropriate to reflect the Tribunal's reasoning."

1. The practitioner filed submissions on or about 25 February 2025.
2. These submissions consist of 23 numbered paragraphs.
3. The submissions commences with the practitioner submitting that he objects to Commission raising these issues. He submits that "the errors are not in such way". In the alternative, the practitioner submits that [252] of the Primary Decision "and or other paragraph in the document of reason [2025] NSWCATOD 5 are needed for amendment according to the Order".
4. Otherwise, the practitioner:

(1) submits, in seven different ways, that the Tribunal lacked jurisdiction to hear and determine the Commission's complaints;

(2) submits that the Tribunal denied the practitioner procedural fairness; and otherwise,

(3) raises complaints about the conduct of the Commission or otherwise identifies alleged errors in the Primary Decision.

1. As such, the submissions do not directly address the Commission's request for amendments to the Primary Decision pursuant to s 63 of the NCAT Act.

1. The practitioner filed additional submissions on 24 March 2025.
2. These submissions consist of 23 numbered paragraphs. They are set out in their entirety in Attachment B.
3. These submissions raise complaints about the conduct of the Commission or otherwise identify alleged errors in the Primary Decision. As such, they do not address the Commission's request for amendments to the Primary Decision pursuant to s 63 of the NCAT Act.

1. In the directions issued for the filing of submissions on the amendments sought, the Tribunal indicated that it proposed to consider this issue on the papers and without a hearing. Either party opposing that course was directed to address that issue in their submissions.
2. Neither party opposed the Tribunal determining the applications for s 63 amendments on the papers and without a hearing. As the Tribunal is satisfied that it can determine the issues on the basis of the submissions before it, a hearing is dispensed with: NCAT Act, s 50(2).

1. We also note that s 62 of the NCAT Act relevantly provides:

62 Tribunal to give notice of decision and provide written reasons on request

(1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings.

(2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made.

(2A) Subsection (2) does not apply to the following decisions of the Tribunal -

...

(f) other minor procedural decisions that do not have a final or determinative impact on the rights of a party.

1. Accordingly, it is arguable that there is no need to provide reasons for our decision to amend the Primary Decision pursuant to s 63 of the NCAT Act. However, we did not seek submissions from the parties on this issue and, in any event, given the sensitivity of the proceedings to the practitioner, we consider that the better course, on this occasion, is to provide these brief reasons for our decision.

63 Power to correct errors in decisions of Tribunal

(1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member.

(2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct.

(3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where -

(a) there is an obvious clerical or typographical error in the text of the notice or statement, or

(b) there is an error arising from an accidental slip or omission, or

(c) there is a defect of form, or

(d) there is an inconsistency between the stated decision and the stated reasons, or

(e) there is an inconsistency between the name of a person stated in the text of the notice or statement and the name stated on the person's birth certificate or other form of identification.

1. In Bruce v Knight (No 3) [2021] NSWCATAP 343, the Appeal Panel considered the case law on what is commonly referred to as "the slip rule" at some length. The Appeal Panel, differently constituted, summarised the relevant principes of Bruce v Knight (No 3) in Sunaust Properties Pty Ltd v The Owners SP No 64807 (No 2) [2022] NSWCATAP 335 as follows:

(1) the purpose of s 63 is to avoid injustice by permitting rectification of errors or omissions in the orders or reasons. The test for applying it has been held to be whether, if the matter had been drawn to the Tribunal's attention, a mistake or omission would have been corrected at once;

(2) the slip rule is surprisingly wide in scope. It can apply even if there are different possible "corrections" provided that the choice between them is not a matter of controversy or substance or requires exercise of an independent judgment;

(3) the slip rule should not be used as a vehicle for reopening a decision which has already been published to the parties. The rule should be limited to the subject matter expressly referred to in s 63, namely for the correction of obvious errors. In many cases the slip rule is invoked when a judgment or order fails to express correctly the intention of the court at the time when the judgment or order was announced but through inadvertence was not dealt with.

1. The first four amendments sought by the Commission, to which the practitioner has made no substantive response, plainly fall within the scope of s 63 of the NCAT Act.
2. We see no reason why those amendments sought should not be made.
3. As to the issue raised in the Commission's supplemental submissions, at [257] there was an accidental omission in our findings in relation to Particular (12)(e). We intended to make a finding that we were satisfied that Particular (12)(e) was established, and that that conclusion is consistent with our other findings of the same allegation set out in Particulars (6)(c), (7)(c), (8)(c), (9)(c) and (1)1(e).
4. This has the result that the Primary Decision should be further amended including a finding as to Particular 12(e) in the orders we made and in the second sentence of [257].
5. Finally, on review of the Primary Decision, we noted the same errors in relation to Particulars 11 and 12 at [289], [292] and [313]. We have amended those paragraphs consistent with the above reasons.

(1) A hearing is dispensed with.

(2) As to Particular 11:

(a) in the coversheet order (2) is amended so that the words "(11)(a), (b) and (d)" are amended so as to read "(11)(a), (c), (d) and (e)";

(b) in [289], the words "(11)(a), (b) and (d)" are amended so as to read "(11)(a), (c), (d) and (e)";

(c) in [292], the words "(11)(a), (b) and (d)" are amended so as to read "(11)(a), (c), (d) and (e)";

(d) in [313], the words "(11)(a), (b) and (d)" are amended so as to read "(11)(a), (c), (d) and (e)";

(e) in order (2) of the orders set out in [322], the words "(11)(a), (b) and (d)" are amended so as to read "(11)(a), (c), (d) and (e)".

(3) As to Particular 12:

(a) In the coversheet order (2) is amended so that the words "(12)(a), (c) and (d)" are amended so as to read "(12)(a), (c), (d) and (e)";

(b) in the first sentence of par [257], the words "we find Particulars (12)(a), (c) and (d) established" are amended so as to read "we find Particulars (12)(a), (c), (d) and (e) established";

(c) in the second sentence of [257], the words "We do not find Particular 12(c) established" should be amended so as to read "We do not find Particular 12(b) established";

(d) in [289], the words "(12)(a), (c) and (d)" are amended so as to read "(12)(a), (c), (d) and (e)";

(e) in [292], the words "(12)(a), (c) and (d)" are amended so as to read "(12)(a), (c), (d) and (e)";

(f) in [313], the words "(12)(a), (c) and (d)" are amended so as to read "(12)(a), (c), (d) and (e)";

(g) in order (2) of the orders set out in [322], the words "(12)(a), (c) and (d)" are amended so as to read "(12)(a), (c), (d) and (e)".

Annexure A (201111, pdf)

Annexure B (160485, pdf)

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.