Health Care Complaints Commission v Singh [2016] NSWCATOD 85 | Case summary

NCAT Occupational|2016-04-29

Introduction

On 11 September 2015 the Health Care Complaints Commission (HCCC) lodged an application for findings and disciplinary orders against Dr Raghubir Singh (the practitioner), a medical practitioner registered on the register of health practitioners maintained by the Australian Health Practitioners Registration Agency on behalf of the Medical Board of Australia.
The application has been listed in directions hearing lists before me in my capacity as List Manager on six occasions since it was lodged with the Tribunal. On each occasion I was informed that attempts were being made by the HCCC to locate the practitioner to effect service of the application on him, but those attempts were unsuccessful. Further, I was advised that, so far as the HCCC is aware, the practitioner has left the jurisdiction for the middle east and his whereabouts are unknown. It was not suggested in these circumstances that an application for substituted service of the application could be made, which, if granted, would result in the application being brought to the attention of the practitioner.
On the last occasion the matter was listed before me Ms B Tronson of counsel appeared on behalf of the HCCC and provided me with helpful written submissions. In her submissions Ms Tronson proposed the proceedings should be adjourned sine die or, in the alternative, the Tribunal consent to the complaint being withdrawn without an order that the proceedings be dismissed.
The complaint annexed to the application alleges the practitioner has engaged in unsatisfactory professional conduct and professional misconduct on the basis that he breached conditions on his registration during a defined period from December 2012 to December 2013. The submissions note that the practitioner's registration is currently suspended.
I reserved my decision on the application. I have determined that the appropriate course is for the Tribunal to consent to the withdrawal of the application. My reasons for that decision follow.

The competing applications

The competing applications before me require consideration of the provisions of the Health Practitioner Regulation National Law (the National Law) and the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) and the Civil and Administrative Tribunal Rules 2014 (NSW) (the rules).
In her submissions Ms Tronson points out the purpose of the proceedings is the protection of the public. I accept that the paramount consideration in disciplinary proceedings under the National Law in NSW is the health and safety of the public (see s 3A of the National Law). Currently, that object of the legislation is substantially met by the order suspending the practitioner's registration.
Ms Tronson points out that if the proceedings were dismissed this would have the effect of disposing of the complaint under s 150(2)(a) of the National Law. I note that s 150(2)(a) provides that a suspension has effect until the complaint about a practitioner is "disposed of". Ms Tronson submits that if the practitioner's suspension ceased to have effect, and he returned to Australia, there is "a real risk he would obtain registration afresh". She goes on to note that if the matter is dismissed and thus disposed of in a final way, the HCCC may be precluded or estopped from again bringing a complaint afresh. Ms Tronson points out (with reference to authority) the difference between dismissal of proceedings on the one hand and withdrawal or discontinuance on the other.
The submissions seek to distinguish this matter from cases where the Tribunal has found it appropriate to permit withdrawal and dismissal of an application for disciplinary findings and orders under cl 12 of Schedule 5D of the National Law noting in such cases the relevant practitioner had given evidence that he or she did intend to seek re-registration, and acknowledged that if, in spite of the expressed intention, he or she did seek re-registration the Commission would consider prosecuting the complaint again.
Based on these submissions it is the HCCC's position that dismissal simpliciter would not be sufficiently protective of the public interest.

The application to adjourn the proceedings sine die

In support of this application, the submissions on behalf of the HCCC advocate "this would be the most straightforward method of achieving the protection of the public". It is submitted that indefinitely adjourning the proceedings will have the effect that the suspension of the practitioner's registration will remain in place, the complaint will not have been "disposed of" and that "Dr Singh's suspension will stand". The submissions note should the practitioner return to Australia the HCCC may have the proceedings relisted so they can be prosecuted appropriately, and the practitioner can defend the allegations in the complaint.
At first blush this application is attractive. But it does not accord with modern case management principles, or the objects of the National Law and the CAT Act.
The term sine die is defined briefly in Osborne's Concise Law Dictionary 11th edition as: [Without day] Indefinitely. See EAT INDE SINE DIE
Eat Inde sine die [Let him go without a day] is defined as: The dismissal of a defendant from a suit
A more extensive definition and discussion of the term is found in Stroud's Judicial Dictionary of Words and Phrases under "Without Day". The extract explains as follows: "to be dismissed without day is to be finally discharged by the court" (Cowel, Day,citing Kitchen, fo 193) "to be discontinued and to be put without day, is all one" (Termes de la Ley, Discontinuance ). But this seems too broadly stated, and, semble, to be dismissed without a day means to be dismissed without any time being given to appear again. Thus in Goddard v Smith (6 Mod. 261), Holt C.J., said, "the entering a nolle prosequi was only putting the defendant sine die, and, so far from discharging him from the offence, that it did not discharge any further prosecution upon that very indictment, but that, notwithstanding, new process might be made out upon it". [my emphasis]
I infer from Ms Tronson's submissions that when she seeks an order that the application for disciplinary findings and orders be dismissed sine die the meaning attributed to the expression is that appearing in bold from the extract from Stroud, namely that the matter be dismissed from the list without any time being given to appear again.
If I am correct in this interpretation the Tribunal would remain in effect seized of the matter and the application could be restored for directions at the request of the HCCC if the practitioner is located.
This outcome is superficially attractive. But the Tribunal is charged under the National Law (Clause 11 of Schedule 5D) with generally hearing matters expeditiously. Clause 11 (1) and (2) provide as follows: (1) It is the duty of a Committee or the Tribunal to hear inquiries and appeals under this Law and to determine those inquiries and appeals expeditiously. (2) Without limiting subclause (1)-- (a) an inquiry or appeal related to action taken by the Council under section 150 must be listed for hearing by a Committee or the Tribunal as soon as practicable; and (b) a Committee or the Tribunal may postpone or adjourn proceedings before it as it thinks fit.
Section 36 of the CAT is found in Part 4 of the Act which deals with practice and procedure. The provision includes the guiding principle to the hearing of proceedings in the Tribunal. The guiding principle requires the Tribunal to apply the Act and rules in proceedings before it so as to facilitate the "just, quick and cheap resolution of the proceedings". Part 4 is subject to the enabling legislation and the procedural rules. Thus, the provisions of the CAT Act and procedural rules only prevail to the extent they are not inconsistent with National Law.
A number of provisions of the procedural rules facilitate the guiding principle of the CAT Act. Relevant for this matter is r 15 which enables the Tribunal to make an order for substituted service if a respondent cannot be served otherwise in accordance with the rules. In this case, if an overseas address or a reliable email address could be ascertained for the practitioner, substituted service could be ordered.
While expressed in different language, both the National Law and the CAT Act generally require that matters are heard expeditiously. Such a requirement is, in my view, completely consistent with s 3A of the National Law as an expeditious resolution of proceedings will generally ensure the health and safety of the public.
The HCCC's position that the application should be "adjourned sine die" does not accord with cl 11 (1) of Schedule 5D or s 36 of the CAT Act. While a "one size fits all" approach cannot be adopted by the Tribunal, an adjournment sine die is out of step with good case management practice, the objects and provisions of the National Law, and the guiding principle of the CAT Act.

Withdrawal of the complaint under cl 12 Schedule 5D.

Ms Tronson submitted as an alternative to an adjournment sine die that the proceedings could be withdrawn under cl 12 of Schedule 5D of the National Law.
That provision is as follows: (1) A Committee or the Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal, if-- (a) any of the following circumstances apply-- (i) a complainant fails to comply with a requirement made of the complainant by the Committee or the Tribunal; (ii) the person about whom the complaint is made ceases to be a registered health practitioner or student; (iii) the complaint before the Committee or the Tribunal is withdrawn; and (b) in the opinion of the Committee or the Tribunal it is not in the public interest for the inquiry or appeal to continue. (2) A Committee or the Tribunal must not conduct or continue any inquiry or any appeal if the registered health practitioner or student concerned dies. (3) The power conferred on a Committee or the Tribunal by this clause may be exercised by the Chairperson of the Committee or the member of the Tribunal presiding and, if exercised by the Chairperson or member, is taken to have been exercised by the Committee or the Tribunal.
Section 165B(5A) of the National Law provides that the Tribunal "when constituted to make an ancillary decision or an interlocutory order" within the meaning of the CAT Act is to be constituted by the Tribunal List Manager or the member referred to in s 165B(2)(a). In this case the member must be a senior judicial officer. Characterisation of matters that comprise an interlocutory matter is set out in s 4 of the CAT Act and includes (i) any other interlocutory matter before the Tribunal.
The authorities on when an order is interlocutory or final highlight that such classification is not always easy. In Hall v Nominal Defendant [1966] HCA36; 117 CLR 423 Taylor J after reviewing a number of authorities referring to the "test" said: Much the same test has been proposed on other occasions and, if I may say so with respect, it provides a broad test which is unexceptional. So an order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made ,is interlocutory only
As I am satisfied a withdrawal of the application would not finally conclude the rights of the parties is an interlocutory decision it can be made by me as Tribunal List Manager or as a senior judicial officer.
I turn then to whether it is in the public interest for the HCCC to be permitted to withdraw the Application for Disciplinary Findings and Orders with a complaint annexed.
I have already recorded that this matter has been subject of six directions hearings at a cost to both the HCCC and the public. Further directions hearings when the practitioner's whereabouts are unknown will only increase costs which are ultimately borne by the public.
Importantly, as the Tribunal will not have determined the proceedings if they are withdrawn, the practitioner's suspension will remain in place thus precluding him from practising medicine in Australia thereby ensuing public safety.
Finally, an order permitting withdrawal is not a final order and the rights of the parties to agitate the proceedings in the Tribunal will not be lost. Should the practitioner be located, whether in Australia or outside the jurisdiction, he can be served with process either by personal service or substituted service. Once served, the practitioner can be afforded an opportunity to lodge a Reply and any documentation on which he may seek to rely at a hearing. If no response is received from the practitioner the matter may be listed for an undefended hearing.

orders. 1. The Tribunal consents to the withdrawal of the application for disciplinary findings and orders lodged on 11September 2015.

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: 29 June 2016

Health Practitioner Regulation National Law Civil and Administrative Tribunal Rules 2014(NSW)

Health Care Complaints Commission v Singh

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