Health Care Complaints Commission v Sathiyapal

Which provisions about constitution and reconstitution of the Tribunal in proceedings in the Health Practitioner List apply in this case?

1. As author DC Pearce succinctly explains, any inquiry into the meaning of an Act should start with the question: "What message is the legislature trying to convey in this communication?": Pearce DC, Statutory Interpretation in Australia (10th ed, 2024) at 155. To answer that question, the Act must be read as a whole keeping in mind that the apparent scope of a provision may be limited by other provisions. Provisions must read in such a way that they will fit with one another: Ross v R [1979] HCA 29; (1979) 141 CLR 432 at 440.
2. Based on the legislative provisions I have outlined above, the message the legislature was trying to convey is clear. The Tribunal is to be constituted and reconstituted in accordance with any applicable requirements specified by or under the National Law: NCAT Act, Sch 5, cl 13. Section 165C(2) is one such requirement. It provides that when the presiding member "vacates office, for any reason before the Tribunal has completed an inquiry or appeal or made a determination in respect of an inquiry or appeal, the inquiry or appeal is terminated".
3. The application of s 165C(2) of the National Law to the circumstances of this case does not depend on reconciling conflicting provisions and determining which of two conflicting provisions is paramount. Clause 13 of Schedule 5 is a direction to the Tribunal to comply with such requirements when exercising a Division function in proceedings that are entered in the Health Practitioner List.
4. When there is no equivalent direction to that in clause 13 of Schedule 5, the Tribunal may have to determine which of two conflicting provisions is paramount. That was the task the Court of Appeal undertook in Medical Council of New South Wales v Lee [2017] NSWCA 282. At [7] Basten J explained the effect of s 35 of the NCAT Act and s 165A of the National Law: These two provisions expressly provide for the paramountcy of the National Law over the Tribunal Act. However, an express paramountcy provision will be engaged only where there is inconsistency or repugnancy between the paramount and the subordinate legislation.
5. In the same case at Sackville JA held at [88] that: The inconsistency might take the form of a direct conflict between two provisions (for example, where both cannot be obeyed simultaneously). There will also be an inconsistency in the relevant sense if, as a matter of construction, the National Law [NSW] is intended to operate in relation to a particular matter to the exclusion of s 43(3) of the NCAT Act.
6. At [96] Sackville JA concluded that: The National Law should be construed as dealing exhaustively with the circumstances in which a decision by the Council to suspend a medical practitioner can be stayed, terminated or waived. In coming to that view, the Court noted that s 43(3) is in Part 4 of the NCAT Act. By virtue of s 35, that sub-section is "subject to" the National Law.
7. Although there is no need to determine which of two conflicting provisions is paramount, for the following reasons s 52 and clause 8(1)(b) of Schedule 2 to the NCAT Act are inconsistent with s 165C(2) of the National Law and s 165C(2) prevails.
8. Under s 165A of the National Law, when exercising a function in proceedings entered in the Health Practitioner List, the requirement in s 165C(2) applies despite anything to the contrary in the NCAT Act. Section 35 of the NCAT Act is "mirror image" of s 165A of the National Law: Medical Council of New South Wales v Lee [2017] NSWCA 282 at [6].
9. There is a direct conflict between s 165C(2) of the National Law and two provisions of the NCAT Act: 52(1)(b) and Clause 8(1)(b) of Schedule 2.
10. Section 52(1)(b) allows the President to replace a member, after the consideration of a matter has commenced but before it is determined, in circumstances where the members ceases to be a member. That provision is wholly inconsistent with the requirement in s 165C(2) of the National Law because rather than the expiration of the presiding member's term of office terminating the inquiry, the member may be replaced in some circumstances.
11. Clause 8(1)(b) of Schedule 2 to the NCAT Act allows a member who ceases to be a member because of the expiration of the period of the member's appointment, to complete unfinished matters. As with s 52(1)(b) that provision is wholly inconsistent with the requirement in s 165C(2) of the National Law because rather than the expiration of the presiding member's term of office terminating the inquiry, the member may complete unfinished matters in some circumstances.
12. In Health Care Complaints Commission v Dowla [2018] NSWCATOD 96 the Tribunal was considering whether or not a reconstituted Tribunal can complete a hearing when the presiding member becomes "unavailable" during the course of the hearing. At [58], the Tribunal found that there is "a conflict or repugnancy between the provisions of the National Law and the NCAT Act concerning reconstitution of the Tribunal when a member becomes unavailable". At [55], the Tribunal concluded that s 165B and s 165C of the National Law provide a "complete code dealing with the constitution (and reconstitution) of the Tribunal."
13. The direction in clause 13 of Schedule 5 to the NCAT Act is unequivocal. The Tribunal is to be constituted and reconstituted in accordance with any applicable requirements specified by or under the National Law. One such requirement is in s 165C(2) of the National Law. In proceedings that are entered in the Health Practitioner List, the Tribunal must comply with that requirement. The question of paramountcy between that requirement and inconsistent provisions of the NCAT Act does not arise. Even if it did, s 52 and clause 8(1)(b) of Schedule 2 to the NCAT Act are inconsistent with s 165C(2) of the National Law and s 165C(2) prevails.

Does the requirement in s 165C(2) apply to the facts of this case?

1. There is no dispute that Cole DCJ was the presiding member in these proceedings and that the inquiry is not complete. Those elements of s 165C(2) of the National Law are satisfied. It remains to be determined whether the presiding member has vacated office for any reason. If so, the inquiry is terminated.
2. Clause 7(1)(b) of Schedule 2 to the NCAT Act provides that the office of a member becomes vacant if the member, in the case of a term member, completes a term of office and is not re-appointed. 7 Vacancy in office of member (other than President) (1) The office of a member (other than the President) becomes vacant if the member - (a) dies, or (b) in the case of a term member - completes a term of office and is not re-appointed, or (c) in the case of an occasional member - when the proceedings in relation to which the member has been appointed as an occasional member have been finally determined for the purposes of section 11, or (d) resigns the office by written instrument addressed to the Minister, or (e) is nominated for election as a member of the Legislative Council or of the Legislative Assembly or as a member of a House of Parliament or a legislature of another State or Territory or of the Commonwealth, or (f) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or (g) becomes a mentally incapacitated person, or (h) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or (i) is removed from office under subclause (2). (2) The Governor may remove a member (other than the President) from office for incapacity, incompetence or misbehaviour.
3. In Health Care Complaints Commission v Dowla [2018] NSWCATOD 96, the Tribunal discussed the meaning of the words "vacates office" in s 165C in the context of a presiding member becoming unavailable. The Tribunal concluded at [52] that the presiding member vacates office "if he or she is unable, for any reason, to preside until the hearing is completed."
4. At the hearing, the Tribunal raised with the parties a possible interpretation of the term "vacates office" to exclude the circumstances where a member is able to complete unfinished matters under clause 8 of Schedule 2 to the NCAT Act. Parties were invited to make further submissions on this possible interpretation.
5. The Commission submits that the definition of "vacates office" in Clause 7(1)(b) of Schedule 2 is expanded or modified by Clause 8 of Schedule 2 headed "Provisions relating to Members". "Vacates office" means that the relevant member is either not available or not entitled to continue to hear the matter. Cole DCJ is entitled to continue to hear the matter because Clause 8 of Schedule 2 allows a member to complete unfinished matters in certain circumstances. Those circumstances include where a member ceases to be a member because of the expiration of the period of their appointment.
6. Dr Sathiyapal submits that the provisions of the National Law as to the constitution and reconstitution of the Tribunal provide a complete code, irrespective of any provision of the NCAT Act.
7. On its face, the description of the circumstances where the office of a member becomes vacant, in clause 7 of Schedule 2 to the NCAT Act, applies to all members of the Tribunal, whether they are exercising a Division function in proceedings in the Health Practitioner List or exercising other functions. There are no other provisions which are inconsistent with that interpretation. The meaning of the term "vacates office for any reason" in s 165C(2) of the National Law at least includes vacating office for any of the reasons listed in clause 7 of Schedule 2 to the NCAT Act. As I have said, Cole DCJ completed a 5 year term of office as a Deputy President of the Tribunal and did not seek re-appointment.
8. When exercising a Division function in proceedings in the Health Practitioner List, the Tribunal must be constituted or reconstituted in accordance with the requirements in s 165C(2). One such requirement is that when the presiding member vacates office, the proceedings are terminated. A different requirement applies to Tribunal proceedings that are not in the Health Practitioner List. Despite a member vacating office for defined reasons, that member may complete unfinished matters in certain circumstances. The inquiry is not necessarily terminated. Clause 8 of Schedule 2 does not expand the meaning of "vacates office" in s 165C(2) of the National Law; it imposes a different requirement in some circumstances.
9. It follows from these reasons that the inquiry is terminated and the Tribunal may be reconstituted in accordance with Part 8, Division 10 of the National Law, for the purpose of conducting a new inquiry in respect of this matter.
10. The Commission submits that the President of the Tribunal should appoint Cole DCJ as a member of the Tribunal for these proceedings only, under s 15(2) of the NCAT Act. 15 NSW judicial officers acting as members of Tribunal (1) Classes of NSW judicial officers who may act as members may be prescribed Any NSW judicial officer who belongs to a class of NSW judicial officer prescribed by the regulations for the purposes of this section is taken to have been duly appointed to act as a member of the Tribunal in relation to such matters within the jurisdiction of the Tribunal as are prescribed by the regulations. (2) President may appoint NSW judicial officer to act as member Without limiting subsection (1), the President may appoint any NSW judicial officer to act as a member of the Tribunal in relation to particular proceedings before the Tribunal if - (a) the President is satisfied that the appointment of the judicial officer to act as a member is necessary to enable the Tribunal to exercise its functions effectively in the proceedings, and (b) the relevant chief judicial officer agrees to the NSW judicial officer's appointment.
11. The Commission described this course as an "administrative step" which would allow the matter to proceed to what is likely to be a one day Stage 2 hearing.
12. Appointing Cole DCJ as a member of the Tribunal would not overcome the effect of s 165C(2) of the National Law which is that the proceedings are terminated by force of law when the presiding member "vacates office for any reason". The term "vacates office" includes where the presiding member completes a term of office and is not re-appointed: Cl 7(1)(b) of Sch 2 to the NCAT Act. Appointing Cole DCJ as a member now would not have the effect of her Honour being "re-appointed".

Effect of termination

1. As the inquiry is terminated, the Tribunal may be reconstituted in accordance with the provisions in Division 10 of the National Law: National Law, s 165C(3). The Tribunal should be reconstituted for the purpose of conducting a new inquiry, despite the fact that Dr Sathiyapal will have to defend the proceedings again.
2. The Commission submits that the Tribunal should be reconstituted with a new presiding member and as many of the other previous members as possible. Dr Sathiyapal submits that the Tribunal needs to be re-constituted with all new members including the presiding member in accordance with s 165B(2) of the National Law. That was the course adopted by the Tribunal in similar circumstances in Health Care Complaints Commission v Dowla [2019] NSWCATOD 117 and by the Medical Tribunal in Health Care Complaints Commission v Do [2013] NSWMT 7 at [15]-[17].
3. I am satisfied that the Tribunal should be re-constituted with four new members in accordance with s 165B of the National Law. The panel members of the terminated Tribunal proceedings have already expressed a view about the facts. Retention of any of the same members would undermine procedural fairness considerations which require that the reconstituted Tribunal conduct a new inquiry and consider the evidence afresh.
4. The manner in which that inquiry is to be conducted is a matter for the newly constituted Tribunal.

Costs

1. Under Schedule 5D, clause 13 of the National Law, the Tribunal has power to require the Commission or a registered health practitioner such as Dr Sathiyapal, to pay the costs of another party. 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.
2. The Tribunal has a broad discretion in relation to costs, but that discretion must be exercised judicially: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [43]. The ordinary rule is that costs follow the event, that is, the successful party is entitled to their costs, unless it appears that some other order should be made. The onus is on the unsuccessful party to displace the ordinary rule.
3. The Commission sought costs of the terminated Stage 1 hearing. According to the Commission, "the administrative business of the Tribunal is not disentitling conduct on the part of the Commission". It would be "grossly unfair" to the Commission if it were not entitled to its costs. Dr Sathiyapal submits that as the need for a new inquiry is not the fault of either party, each party should pay their own costs.
4. We note that in Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156, the Tribunal dealt with the question of costs after the proceedings had been finally determined. In that case the Commission did not apply for its costs in relation to the hearing days for the terminated proceedings.
5. As was the case in Health Care Complaints Commission v Dowla (No 2), it is preferable for the issue of costs to be determined by the Tribunal when the inquiry has been completed.

Orders 1. Under s 165C(2) of the Health Practitioner Regulation National Law (NSW) the proceedings are terminated. 2. The Tribunal is to be reconstituted in accordance with Part 8 Division 10 of the Health Practitioner Regulation National Law (NSW) for the purposes of conducting a new inquiry.

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

Amendments 25 June 2024 - Coversheet - Hearing Date(s): corrected to 28 May 2024 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 June 2024