Health Care Complaints Commission v Rayamajhi

Background

Pursuant to a decision under s 90B(1) of the Health Care Complaints Act 1993 (NSW), to prosecute a complaint ('the Complaint'), on 27 May 2024, the Health Care Complaints Commission (the applicant) lodged an application seeking orders amongst other things, that the respondent's registration be cancelled pursuant to s 149C(1)(b), (c) or (d) of the Health Practitioner Regulation National Law (NSW) ('National Law').
According to the application, the respondent, Lyndal Ann Rayamajhi was first registered as a nurse under the National Law on 26 September 2013. On 11 November 2022, the Nursing and Midwifery Council of NSW ('the Council') imposed conditions on the respondent's registration; and on 19 December 2022, the conditions were varied. The Complaint alleges several matters, including that the respondent was charged and convicted of driving offences, failed to notify the National Board of this within 7 days and worked in breach of the conditions of her registration.
On 5 July 2024, the matter was listed before me for directions. There was no appearance by the respondent. On that occasion, Mr Fair appeared for the applicant and informed the Tribunal that, to date, the applicant had been unable to personally serve the application on the respondent and by oral application, sought orders for substituted service.

Relevant law

The proceedings are proceedings under the National Law.
Clause 9 of Div 3 of Sch 5 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides as follows: 9 Certain objectives and principles under National Law to be applied (1) The Tribunal, when exercising its Division functions for the purposes of the National Law, is under a duty to observe the objectives and principles referred to in sections 3 and 3A of the National Law. (2) The provisions of this clause are in addition to, and do not limit, the provisions of section 36(5) of this Act.
Further, s 36(5) of the NCAT Act provides: 36 Guiding principle to be applied to practice and procedure … (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.
Relevantly, the National Law is the enabling legislation.
Also relevant is s 35 of the NCAT Act which provides as follows: 35 Application of Part Each of the provisions of this Part is subject to enabling legislation and the procedural rules. Note - The Division Schedule for a Division of the Tribunal may, in some cases, make special provision for the practice and procedure to be followed in connection with certain proceedings allocated to the Division for determination. The provisions of the Division Schedule prevail to the extent of any inconsistency with the provisions of this Part. See section 17(3). Section 4(4) also provides that any provisions of this Act that are expressed to be subject to the procedural rules have effect subject to any exceptions, limitations or other restrictions specified by the procedural rules. Enabling legislation may also make provision for matters relating to practice and procedure in relation to functions conferred on the Tribunal, including (for example) specifying periods within which applications or appeals under that legislation are to be made.
Sections 3 and 3A of the National Law provides: 3 Objectives (1) The object of this Law is to establish a national registration and accreditation scheme for - (a) the regulation of health practitioners; and (b) the registration of students undertaking - (i) programs of study that provide a qualification for registration in a health profession; or (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are - (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health practitioners; and (ca) to build the capacity of the Australian health workforce to provide culturally safe health services to Aboriginal and Torres Strait Islander Peoples; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners. 3A Guiding principles [NSW] (1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration. (2) The other guiding principles of the national registration and accreditation scheme are as follows - (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (a1) the scheme is to ensure the development of a culturally safe and respectful health workforce that - (i) is responsive to Aboriginal and Torres Strait Islander Peoples and their health; and (ii) contributes to the elimination of racism in the provision of health services; Example - Codes and guidelines developed and approved by National Boards under section 39 may provide guidance to health practitioners about the provision of culturally safe and respectful health care. (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
As noted above, the applicant determined to refer the Complaint to the Tribunal. This is an available course of action under s 145C(1) of the National Law. This is treated as an application to the Tribunal. Section 39 of the NCAT Act relevantly provides: 39 What constitutes an application For the purposes of this Act, an application to the Tribunal includes a complaint, referral or other mechanism (however expressed) by means of which enabling legislation provides for a matter to be brought to the attention of the Tribunal for a decision.
The Civil and Administrative Tribunal Rules 2014 (NCAT Rules) provide for the filing and service of documents. Rules 4(3) and 4(4) provide: 4 Application of rules (3) These rules apply to proceedings in the Tribunal subject to any provisions of enabling legislation or a Division Schedule for a Division of the Tribunal that are applicable to the practice and procedure to be followed in proceedings of the kind concerned. (4) Nothing in these rules is intended to limit the application of the guiding principle referred to in section 36 of the Act when the Tribunal exercises a power given to it by these rules or interprets a provision of these rules. Here the enabling legislation is the National Law.
Further, s 40 of the NCAT Act provides that: 40 Making of applications and appeals An application or appeal to the Tribunal is to be made in the time and manner prescribed by enabling legislation or the procedural rules.
The expression "procedural rules" includes "the Tribunal rules": NCAT Act, s 4.
I was not directed to, nor does there appear to be a provision of the National Law requiring notification to the respondent of the application to the Tribunal. I pause to note that there are some notification requirements under the National Law; such as under s 145BA of the National Law, in relation to steps taken by the Council. However, these are not relevant to the application before me.
I therefore proceed on the basis that the NCAT Act and NCAT Rules apply and that there is nothing inconsistent in the enabling legislation (the National Law). I note that this was the position taken in Health Care Complaints Commission v Elliott [2016] NSWCATOD 83 at [13]; Health Care Complaints Commissioner v Ghosh [2020] NSWCATOD 7; and Health Care Complaints Commission v Singh [2016] NSWCATOD 85 at [20].
The NCAT Rules provide for service of documents. Rule 13(2) provides 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.
The applicant did not serve the application by any of the stipulated methods. Despite there, initially, being some cause for concern that the respondent was not residing at the registered street address, especially since the respondent denied receiving the letter sent in January, her residential address has now been confirmed. Accordingly, it would have been possible to serve the respondent by sending the documents by post to her residential address (here, the registered street address), or by leaving them at her registered street address: rr 13 (2)(b)(ii) or (c)(ii) of the NCAT Rules.
Nevertheless, the applicant seeks an order for substituted service. In particular, the applicant seeks an order that the application be taken to have been served on the respondent on 28 May 2024, when it was emailed to her registered email address: r 15(3) of the NCAT Rules. The applicant submitted that the respondent would be taken to have been served in accordance with the timing rules set out in s 13A of the Electronic Transactions Act 2000 (NSW). Further, the applicant seeks an order that, from the date of this decision, the Respondent will be taken to have been served, by emailing the document to her registered email address with any necessary means of accessing the documents by way of a file share link to enable access of any large documents that are too large to send as attachments to an email. Again, the timing would be in accordance with the Electronic Transactions Act.
The Electronic Transactions Act relevantly provides: 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.
By way of alternative, the applicant seeks that the method of service be by way of post to the registered street address, in addition to the email.
Rule 15 of the NCAT Rules provides: 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.
As noted above, the 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.
To this end, I am satisfied that it serves the objectives and principles of the National Law, that the Complaint be progressed in the Tribunal as expeditiously as possible: cl 11 of Sch 5D to the National Law. Delay caused by any further attempts to effect personal service is not warranted; particularly, as here, where I am satisfied that the respondent also goes by the name Lyndal Ann Cooper and that her registered street address and registered email have been confirmed. To avoid further delay, the applicant seeks an order that the application be taken to have been served when it was emailed to her in May 2024.
In order to make an order for substituted service, it must be demonstrated that service, by the stipulated means, is impractical. Further, the Tribunal must be satisfied that the method of substituted service will be efficacious. It is not necessary to demonstrate that service is otherwise impossible. See for instance Health Care Complaints Commission v Ghosh [2020] NSWCATOD 7 and the authorities there cited (Alstom Limited v Sirakas [2010] NSWSC 669 at [40]-[42] per Palmer J; and Electrolux Home Products Pty Ltd v Delap Impex Ltd [2013] FCA 600 at [76] and [78] per Katzmann J). As noted by Boland ADCJ in Health Care Complaints Commission v Ghosh [2020] NSWCATOD 7 at [16]: There are numerous authorities dealing with the principles to be applied when making an order for substituted service. The authorities do not support the making of an order for substituted service for mere convenience, rather it must be demonstrated that it is impractical to effect service. In all cases, the practicality or impracticality of personal service will be coloured by the degree to which the Court can be assured that substituted service will efficaciously bring the proceedings to the proper notice of the defendant. The more likely it is that substituted service will not be efficacious, the more difficult it will be to persuade the Court to dispense with personal service.
Here, I am satisfied that the applicant has gone to sufficient lengths to personally serve the respondent and that despite these considerable lengths they have been unsuccessful. I am also satisfied that further attempts at personal service are likely to be met with the same result. On the other hand, her registered street address has been confirmed and there would appear to be no bar to the applicant now sending the application to her registered street address or leaving it at her registered street address. Either of these methods do not require an order for substituted service: see r 13 of the NCAT Rules. I was not directed to, nor does there appear to be, a requirement for personal service of the application. However, given the history of the matter, there might be an open question about whether service by post or by leaving documents at her registered residential address, would be efficacious. Accordingly, this is an appropriate case to make an order for substituted service.
Whilst the applicant seeks to avoid further delay by applying for an order that the application be taken to have been served, I have a concern with directing that the service of the application be taken to have already taken place. This is due to the uncertainty in knowing when the document was received or deemed to have been received. The applicant suggested relying on s 13A of the Electronic Transaction Act. However, here, there is neither an agreement as to the timing of receipt, nor a designated email address. Accordingly, under s 13A, the timing of receipt for the purposes of service by email, depends upon the email coming to the respondent's attention. The evidence does not disclose that the respondent has acknowledged receipt of the emailed application. On the positive side, I am satisfied that emails sent to the respondent's registered email address are capable of coming to her attention.
In the circumstances, I decline to make an order that service be taken to have occurred when the application was emailed on 28 May 2024. However, I accept that the applicant's alternative solution is warranted. Accordingly, to ensure no further delays and to ensure (as best as practicable) efficacious service, the application and all other documents are to be sent to or left at the respondent's registered street address and also emailed to her registered email address.

At a glance

Court

Decision date

Source

Judgment (5 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (5)

Cited By (3)