On 18 December 2015, at the conclusion of disciplinary proceedings before it, the Tribunal published its reasons and decision. The Tribunal declared that if Geoffrey Norman Mitchell (the practitioner) had been registered as a psychologist on the National Register of Health Practitioners maintained by the Australia Health Practitioner Regulation Agency (AHPRA) it would have cancelled his registration. The Tribunal requested AHPRA record the declaration on the Register.
The Health Care Complaints Commission (the HCCC) submit that, at the time the Tribunal published its reasons and decision, the practitioner's registration had not been cancelled or expired, but his registration was suspended. Consequently, the order made was in error. AHPRA wrote to the HCCC on 29 January 2016. In its letter AHPRA pointed out that:
Pursuant to section 176D of the National Law, the effect of a suspension is that the person is taken during the period of suspension not to be registered under the National Law [the Health Practitioner Regulation National Law] other than for the purposes of Part 8 of the National Law (Health, Performance and Conduct) (original emphasis).
Following receipt of AHPRA's letter, Ms F Westwood, Legal Officer, on behalf of the HCCC, wrote to the Presiding Member of the Tribunal by letter dated 5 February 2016. In her letter she said:
I respectfully request that Order 1 to 3 be amended as set out below, to take into account the registration status of [the practitioner] at the time of the hearing.
The amendment the HCCC seek is first, an order that the practitioner's registration be cancelled and secondly, that he be precluded from seeking a review of the order for a period of 2 years. The latter order sought is unnecessary as an order under s 149C (7) was made by the Tribunal (see Order 3).
The HCCC's letter does not suggest the legislative basis for making the amendment to the Tribunal's orders.
The matter was listed before me in my capacity as List Manager of the Health Practitioner List on 19 February 2016. On 17 February 2016 the Tribunal staff telephoned the practitioner who is recorded as saying "I don't want to spend any more time on it" and hung up. He did not participate in the directions hearing.
At the directions hearing counsel for the HCCC submitted that, relying on the principles enunciated by the Gaudron and Gummow JJ in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597; 187 ALR 117, 76 ALJR 598, the amendment requested could be made. I reserved my decision. These are my reasons for the orders made.
[2]
Possible remedies
There are a number of provisions of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) and the regulations made under the Act that may be applicable to this application. I consider them below. I also consider the HCCC's submissions based on Bhardwaj.
[3]
Civil and Administrative Tribunal Regulations 2013 (NSW)
Under Reg 9 (1) of the Civil and Administrative Tribunal Regulations 2013 (NSW) (the regulations) the Tribunal can exercise power to set aside or vary a decision. This power is in addition to any power expressly conferred on the Tribunal under the CAT Act or the enabling legislation, in this case, the Health Practitioner Regulation National Law (the National Law). But the power can only be exercised if all the parties consent, or if the decision was made in the absence of the party and the Tribunal determines that party's absence has resulted in their case not being adequately put to the Tribunal.
An application under the regulation is to be made within 7 days of when the decision was made. However, the Tribunal can extend that period of time under s 41 of the CAT Act.
It is not in dispute the practitioner participated in the hearing. Accordingly the second limb or criteria to set aside or vary a decision under Cl 9 is irrelevant.
Although the practitioner was unresponsive to the Tribunal's request to participate in a directions hearing on 19 February 2016, it appears to me it is still open to the HCCC to prepare a Consent Order in reliance on the rule, and seek the practitioner's consent to the order in the terms sought in the HCCC's letter.
If the matter is able to be resolved in this manner, the correction will be in accord with the objects of the CAT Act.
Generally, if any error of a similar nature to that which occurred in this matter has been made, correspondence with the respondent asking for consent to amendment of the orders (the decision) will be appropriate. Such a procedure will avoid the expense and delay of seeking amendment under the provisions of the CAT Act, or the appeal provisions of the National Law.
[4]
Section 53
Section 53 of the CAT Act gives a discretion to the Tribunal to amend a document if the Tribunal considers it necessary to do so in the interests of justice. The section provides as follows:
53 Amendments and irregularities
(1) The Tribunal may, in any proceedings, make any amendments to any document (for example, an application or appeal) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice.
(2) Any such amendment may be made:
(a) at any stage of the proceedings, and
(b) on such terms as the Tribunal thinks fit,
but may only be made after giving notice to the party to whom the amendment relates.
(3) If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise.
(4) The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings.
"Document" is not defined in the CAT Act. The language employed in s 53 (1) is indicative of an amendment being made to a document filed in proceedings not a "decision" of the Tribunal. However, amendment of the decision in whole or part may result from an irregularity under the provisions of the Act or the procedural rules. It appears to me that if s 53 (1) is to permit amending a decision after publication, the Tribunal must first determine it is necessary in the interests of justice to amend a document under s 53 (1) and make new orders under s 61. Otherwise, the sub-section would have referred, not only to amendment of documents, but to a decision. Further, it is arguable that s 63 (the slip rule provision) would be otiose if amendment could be made under s 53 without regard to s 53(1) or s 53 (3).
I do not consider that s 53 provides a source of power to amend the Tribunal's decision in this instance.
[5]
The slip rule
Section 63 is the statutory enactment, for the purposes of the Tribunal, of the common law "slip rule". It is analogous to, but not identical with, r 36.17 of the Uniform Civil Procedure Rules 2005 (the UCPR). It does contain similar words to those found in r 36.17 namely "error", "accidental slip or omission". These words are subject of appellate consideration.
Section 63 is in the following terms:
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.
It is also relevant that I mention here to the objects of the CAT found in s 3. In particular, I refer to s 3 (d), (e), (f) and (g). Those objects are as follows:
(d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and
(e) to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality, and
(f) to ensure that the Tribunal is accountable and has processes that are open and transparent, and
(g) to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members.
It was not suggested before me that the reasons and the orders made demonstrate that this is a case of an obvious typographical or clerical error in the text of the notice of decision or statement of reasons. Nor is there prima facie a defect in the form of the order. The form of the order is correctly worded if a practitioner is not registered at the date of the order, and a Tribunal finds the practitioner guilty of professional misconduct, and that his or her registration should be cancelled. This occurs not infrequently in disciplinary proceedings when a practitioner, who is not suspended, either voluntarily surrenders his or her registration, or the registration expires and no application for renewal is made. That is not the case here. The Tribunal was clearly cognisant the practitioner was suspended (reasons [81]). But confusingly, as I will explain in more detail shortly, there was a period during the complaint period when his registration had lapsed.
It is noteworthy that the Tribunal found the practitioner was guilty of professional misconduct. It further found he had failed to comply with conditions placed on his registration, and that he continued to provide services "when he was not registered". Further, the Tribunal formed the view that the practitioner should be precluded from applying for re-instatement to the register for a period of two years.
However, having regard to the correspondence to the HCCC from AHPRA, it clear that it there is, in reality, a defect in the wording of the decision. That defect precludes the recording on the public register of the cancellation of the practitioner's registration. It is strongly arguable that this is the type of defect envisaged by the drafters of s 63.
The agreed Statement of Facts lodged with the Tribunal discloses that, on 30 November 2012, the practitioner's registration lapsed. Paragraph 10 of the Statement notes "His name was consequently removed from the AHPRA Register of Practitioners on 3 January 2013 (V1 Tab 5)". Further, at [18] the statement says "On 21 March 2013 the AHPRA sent the practitioner a letter advising that the Law does not provide for reinstatement of registration period (V1, Tab 6, Ann57)". The statement goes on to note on 27 February 2013 the Council approved Ms Weekes as a supervisor of conditions on the practitioner's registration. The document is confusing as it appears, in error, to refer interchangeably to dates in January 2013 [36] and at [38] to January 2012 involving Ms Weekes, a proposed supervisor of the practitioner. Nor is it clear when the practitioner regained registration after it lapsed on 30 November 2012.
The Statement notes at [42]:
The practitioner provided counselling services to patients variously at the City Medical Centre and the CND Medical Practice between 28 September 2012 and 31 December 2012 and between 4 February 2013 and 23 May 2014 when his registration was suspended.
When the slip rule may be invoked to correct an error is subject of extensive discussion in the decision of Spigelman CJ In Newmont Yandel Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group, Inc [2007] NSWCA 195 at [22]-[27] and [111] (see also Trad v Harbour Radio Pty Ltd [2016] NSWCA 80).
In Newmont Spigelman CJ pointed out the inherent dangers of reliance on decisions made under the common law to interpret statutory enactments of the slip rule. Rather, he explained that the rule must be construed having regard to its precise words, and also having regard to the overriding purpose of the rules namely to "facilitate the just, quick and cheap resolution of the real issues in dispute in the proceedings".
Similarly, I am of the view that s 63 must be construed having regard to its actual wording and interpreted consistently with the objects in s 3 of the CAT Act that I have extracted in part above. Consistent with the reasoning in Newmont at [116], I am satisfied that s 63 should not be given a narrow interpretation. I also have regard to the discussion by McColl JA in Trad v Harbour Radio Pty Ltd [2016] NSWCA 80 at [25] and the authorities cited therein.
I am satisfied that in this case there is an obvious error of form in the decision. I turn then to the question of whether that defect is as a result of a slip on the part of the Tribunal. It is not an accidental omission. The "slip" of the Tribunal was to overlook the effect of the suspension when it declared it would have cancelled the practitioner's registration if he had been currently registered, rather than cancelling his registration. The proposed amendment does not require an "independent exercise of discretion". Further the error is one which has led to a "defect in form" in the decision (see s 63 (3) (d)).
As a consequence I am satisfied that either the President or the Presiding Member may, if he or she agrees with my reasoning, direct the Registrar to amend the decision in reliance on s 63 (3) (d) of the CAT Act.
[6]
Section 61 and the doctrine of "functus officio"
Section 61 of the CAT Act provides that a general decision (as distinct from an administrative decision under the Administrative Decisions Review Act 1997 (NSW)) takes effect "on the date on which it is given or such later date as may be specified in the decision". This section applies to decisions given orally or reserved (see Li v Ward Building Construction Pty Ltd [2016] NSWCATAP 104). It is in broadly identical terms to s 165E of the National Law.
The UCPR provide for an order to take effect on the date on which it is given (see Lindsay J's explanation - "that means today" - in G v G [2016] NSWSC 511) or, if it is ordered, when it is entered. Entered means entered on the Court's computerised system. The effect of this Part of the UCPR is summarised by Hallen J in Angius v Salier [2015] NSWSC 1446 at [43]-[50] as follows:
Section 133(1) of the Civil Procedure Act provides that a judgment or order of the court may not be enforced until it has been entered in accordance with the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR").
UCPR rule 36.1 provides that at any stage of proceedings, "the court may give such judgment, or make such order, as the nature of the case requires..."
UCPR rule 36.1A provides that the court may give judgment, or order that judgment be entered, in the terms of an agreement between parties in relation to proceedings between them.
UCPR rule 36.4(1) provides that a judgment or order takes effect (a) as of the date on which it is given or made, or (b) if the court orders that it not take effect until it is entered, as of the date on which it is entered. UCPR rule 36.4(3) provides that the court may order that a judgment or order is to take effect as of a date earlier or later than the date fixed by the earlier sub-rule.
UCPR rule 36.11 provides that any judgment or order of the court is to be entered and that unless the court orders otherwise, a judgment or order is taken to be entered when it is recorded in the court's computerised court record system.
UCPR rule 36.15 provides that a judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. Otherwise, a judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.
UCPR rule 36.16(1) relevantly provides that the court may set aside or vary a judgment or order if a notice of motion for the setting aside or variation is filed before entry of the judgment or order. The court may set aside or vary an order after it has been entered only in limited circumstances: UCPR rule 36.16(2). However, if a notice of motion for setting aside or variation of an order is made within 14 days after it is entered, the court may determine the matter as if the order had not been entered: UCPR rule 36.16(3A).
In past times, an order of a court was described as "perfected" when it was "taken out". This was established by the issuing of a sealed copy of the order signed by the relevant judicial officer or registrar of the court.
An order may be amended at any time before it is perfected or entered (see Burrell v The Queen [2008] HCA 34; Angius v Salier).
The reasons underlying the restriction on setting aside a perfected order of a superior court are cogently described in Burrell. The plurality said:
Secondly, it is important to recognise that underpinning consideration of the issues presented in this matter are fundamental principles about finality of litigation. As was said in D'Orta-Ekenaike v Victoria Legal Aid [10]: "A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances." That tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud [11] and in doctrines of res judicata and issue estoppel. The principal qualification to the general principle of finality is provided by the appellate system. But in courts other than the court of final resort, the tenet also finds reflection in the restrictions upon reopening of final orders after they have been formally recorded.
The third consideration of principle which it is necessary to state at the outset is related to the second. It is that the principle of finality serves not only to protect parties to litigation from attempts to re-agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time. Later correction of error is not always possible. If it is possible, it is often difficult and time-consuming, and it is almost always costly. [footnotes omitted]
The principles enunciated by the plurality in the High Court in Burrell are also applicable to a Tribunal. Litigants should generally have finality of issues in dispute, and presiding members, parties and lawyers should exercise care in the making of orders.
The CAT Act and the National Law make no provision for the taking out of perfected orders. Thus, it appears the drafters of the legislation envisaged a less formal regime should apply to the Tribunal's decisions, than those applying to superior or inferior courts. As I will shortly explain, that approach is consistent with the reasoning of the Canadian Supreme Court, approved by Gaudron and Gummow JJ in Bhardwaj.
In accordance with the objects of the CAT Act, s 61, and s 165E of the National Law, afford the opportunity, in limited circumstances, for re-opening and the possibility of amendment of orders. The ability to seek to re-open must be balanced against the need for certainty to parties, and the Tribunal, afforded by finality in proceedings. In this case the HCCC did not seek to re-open the proceedings before the Tribunal although that option would have been available to it if it determined that s 165E of the National Law was applicable in the particular circumstances.
[7]
Appeal to the Supreme Court
There is no dispute that either party could lodge an appeal against the decision to a single Judge of the Supreme Court (see cl 29 (1) (d) Schedule 5 Part 6A CAT Act). However, this would be costly and time consuming. In light of the alternate remedies discussed in these reasons it is unnecessary that I say anything more about this right.
[8]
Amendment of an administrative decision (the Bhardwaj reasoning)
It was submitted to me on behalf of the HCCC that, applying the reasoning of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597; 187 ALR 117, 76 ALJR 598, the decision could be amended.
Two statements of Gaudron and Gummow JJ in Bhardwaj are of relevance. At [51] their Honours explained:
There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged. A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition. [footnotes omitted]
Their Honours then set out an extract from a decision of the Supreme Court of Canada of Sopinka J (Chandler v Alberta Association of Architects (1989) 2 SCR 848) where the judge said:
As a general rule, once [an administrative] tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances ...
To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law.
At [53] Gaudron and Gummow JJ accepted as correct the approach of the Canadian Court and said:
As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. And that is so, regardless of s 33(1) of the Acts Interpretation Act.
The question of whether the reasoning in a decision directed to the powers and procedures of an administrative tribunal, applies in disciplinary proceedings was touched on, but not determined, in HCCC v Ostendorf (No 2) [2016] NSWCATOD 44. In Ostendorf (No 2) the error was, sensibly, able to be overcome by the parties agreeing to vary the orders made without jurisdiction in reliance on Reg 9 (2) of the regulations.
Notwithstanding the submissions made to me on behalf of the HCCC, in light of my conclusions about the regulations and/or the s 63 of the CAT Act as available remedies to correct the error, it is, strictly speaking, unnecessary that I consider the matters raised in Ostendorf (No 2), or the submissions based on Bhardwaj. Suffice it that I note the jurisdiction exercised by this Tribunal is not purely administrative as was the case in the former Administrative Decisions Tribunal. Section 28 (2) of the CAT Act states that the Tribunal has four categories of jurisdiction namely:
general jurisdiction;
administrative review jurisdiction;
appeal jurisdiction; and
enforcement jurisdiction.
The decision in Bhardwaj was firmly grounded in principles of administrative law. But as Gleeson CJ noted in his separate reasons it is important to look at what the statute under consideration provides. His Honour explained at [8]:
And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction. Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness. The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. That requires examination of two questions. Has the tribunal discharged the functions committed to it by statute? What does the statute provide, expressly or by implication, as to whether, and in what circumstances, a failure to discharge its functions means that the tribunal may revisit the exercise of its powers or, to use the language of Lord Reid, reconsider the whole matter afresh?
I also note the discussion of Campbell JA in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW & ors [2007] NSWCA 149 at [107]-[108] on this topic. His Honour refers to the distinction between an administrative decision and the exercise of judicial power by reference to the decision of the High Court in Bass v Permanent Trustee Co Ltd v (1999) 198 CLR 334 at [355]. There the High Court explained:
The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy. In R v Trade Practices Tribunal; Ex Parte Tasmanian Breweries Pty Ltd, Kitto J said:
"[J]udicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons... [T]he process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which ... entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist." [footnotes omitted].
This case was a case where the Tribunal was required to inquire into and make factual findings about the practitioner's conduct and to determine, as a matter of law, whether or not that conduct constituted either unsatisfactory professional misconduct or professional misconduct. It appears to me from the nature of the task the Tribunal was required to undertake, that the power exercised by the Tribunal was in its general jurisdiction, not its administrative review jurisdiction
[9]
Conclusions
In this case, for the reasons earlier given, I am satisfied that it is open to the HCCC to request the practitioner to sign consent orders varying paragraphs 1 and 2 of the Tribunal's orders of 18 December 2015.
This procedure may however involve some further delay. While I am satisfied, by reason of the practitioner's suspension there is no risk to the health or safety of the public, further delay would not be consistent with the objects of the CAT Act or ensuring the public register of health practitioners is up to date.
I am not satisfied, that in my capacity as List Manager, or as a single member of the Tribunal, even if I found the reasoning in Bhardwaj persuasive, that I have power to vary the Tribunal's order on that basis (see Quach v NSW Civil and Administrative Tribunal [2015] NSWCA 63).
I have accordingly in my capacity as List Manager requested the Presiding Member to consider instructing the Registrar to issue an amended order under s 63 of the CAT Act. To facilitate that process I have requested the Registrar to provide a copy of these reasons to the Presiding Member.
[10]
orders
1. The Registrar is requested to provide to Senior Member McIllhatton a copy of these reasons for decision for her consideration of amendment under s 63 of the Civil and Administrative Tribunal Act 2013 (NSW).
2. No order as to costs.
[11]
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 May 2016
Parties
Applicant/Plaintiff:
Health Care Complaints Commission
Respondent/Defendant:
Mitchell
Legislation Cited (5)
Civil and Administrative Tribunal Regulations 2013(NSW)
As I have earlier discussed by reference to Gleeson CJ's reasoning in Bhardwaj, the statute (the CAT Act) and the regulations provide remedies independently of any remedy in reliance on the Bhardwaj principles when the Tribunal is exercising its general jurisdiction. Even if the Bhardwaj principles have wider application and are not limited to administrative law remedies, the remedies under the CAT Act should, in my view, first be considered.
The facts and circumstances of this case may be distinguished from those professional disciplinary matters where the enabling legislation provides the jurisdiction exercised is administrative in nature (see for example Architects Act 2003 (NSW) s 31).