By application (Application) filed 22 November 2024, the applicant seeks disciplinary findings and orders against the respondent, a Chinese medicine practitioner registered under the Health Practitioner Regulation National Law 2009 (NSW) (National Law). The applicant now seeks an order in accordance with subrule 15 (1) of the Civil and Administrative Rules 2014 (NSW) (the NCAT Rules) that:
1. service of the Application is to be by way of postage to the respondent's residential address and email address; and
2. service of all material relied on by the applicant going forward be by way of postage to the respondent's residential address and email address.
(the application for substituted service)
[2]
The Materials
The application for substituted service is supported by an affidavit dated 28 January 2025 of Garrett Sutherland Rennie, who is an Acting Manager Investigations Officer in the employ of the applicant. The affidavit identifies and provides copies of correspondence to the respondent, by email, between September 2023 and October 2023 concerning an investigation into a complaint against the respondent. The material includes responses to the emails by the respondent. Since then, however, between February 2024 and July 2024, there have been phone calls and emails to the respondent, but there have been no responses.
The material also includes a file note dated 17 October 2023 of a phone call between Garrett Rennie and the respondent. It included the following:
"- When I asked Mr Thornton whether he had engaged or responded to the Council's numerous attempts to audit his practice or engage with him he said 'I didn't send any responses to the material.'
- Mr Thornton stated that the Council had [sent] 'people to the door, people to the office - it felt like bullying. Knocking at my door at all hours.' I explained that the Council had sent process servers in the interest [of] procedural fairness and their obligation to ensure he had an opportunity to respond and be involved in the process.
…
- I asked Mr Thornton if he would be willing to respond to my email and repeat what he had said to me over the phone. He responded that 'I'd prefer not to write anything...'"
The application for substituted service is also supported by an affidavit dated 28 January 2025 of Rebecca Giselle Clucas, who is a solicitor in the employ of the applicant, with carriage of the Application. In that affidavit, Ms Clucas identifies that on 25 November 2024 she sent a letter by email to the respondent but has not received a response to this email. Further, on 28 January 2025 she also sent a letter by email to the respondent. However, by the next day when the matter came before the Tribunal, there had not yet been a response to that email.
On 25 November 2024, a letter was sent by registered post to what appears to be the residential address of the respondent (the residential address). However, on 11 December 2024 this letter was returned to the applicant by reason of not having been picked up from the post office.
On 2 December 2024 a clerical support officer in the employ of the applicant performed an electoral roll search and confirmed that the residential address held by the applicant matched that held by the Australian Electoral Commission. On 11 December 2024, a process server was engaged to serve the respondent with the Application and notices of listing, personally, at the residential address. The process server attempted service in December 2024 and early January 2025.
On 23 January 2025 a process server was again engaged to serve the respondent personally with the Application and notice of listings, at the residential address. Ultimately, the process server was not able to personally serve the documents, but left the package of documents at the door of the residential address. The affidavit of Ms Clucas includes photos of the package at the front door. The process server noted that there were cars in the driveway. The residential address does not appear to be vacant.
[3]
Relevant Provisions
These 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.
Section 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 provide:
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.
Clause 11 of Schedule 5D to the National Law provides:
11 Expedition of inquiries and appeals [NSW]
(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.
…
The 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.
Section 165J of the National Law provides that in applications of this kind, a registered health practitioner may be represented by an Australian legal practitioner or, with leave, another adviser. Subsection 165J(3) of the National Law provides:
(3) This section does not prevent the Tribunal from proceeding in the absence of the registered health practitioner or student concerned, as long as the practitioner or student has been given notice of the inquiry or appeal.
Further, section 165I of the National Law provides that the Tribunal must give not less than 14 days notice of an inquiry to the registered health practitioner.
I was not directed to and nor does there appear to be a specified rule for how a respondent is to be given notice of applications to the Tribunal under the National Law.
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). 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; Health Care Complaints Commission v Singh [2016] NSWCATOD 85 at [20]; Health Care Complaints Commission v Rayamajhi [2024] NSWCATOD 107 at [17]; and Health Care Complaints Commission v King [2024] NSWCATOD 111 at [20].
The NCAT Rules provide for service of documents. Rules 13 to 15 provide as follows:
13 Service, giving and lodgment of notices or documents
(1) Application of rule This rule applies for the purposes of each of the following -
(a) the Act and the statutory rules under the Act,
(b) the Administrative Decisions Review Act 1997 and the regulations under that Act.
(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.
(3) Service, giving and lodgment of documents with Tribunal A notice or document may be served on, given to or lodged with the Tribunal -
(a) by leaving it at the Registry, or
(b) by sending it by post to the Registry, or
(c) by any other means, including electronic means, as the Tribunal has made available for use for the service, giving or lodgment of notices or documents with the Tribunal.
(4) When notice or document taken to be served, given or lodged Unless the contrary is proved, the time at which a notice or document is taken to be served, given or lodged is -
(a) in the case of a copy of a notice or document that is posted - at the end of the seventh working day after the date on which the notice or document was posted to the person, or
(b) in the case of a copy of a notice or document that is left in a DX box in accordance with subrule (2)(e) - at the end of the second working day following the day on which the copy is so left, or
(c) in the case of a copy of a notice or document that is faxed in accordance with subrule (2)(f) - at the end of the first working day following the day on which the copy is so faxed, or
(d) in the case of a notice or document that is served electronically in accordance with subrule (2)(g) -
(i) if the notice or document that is served has been filed in, or issued by, the Tribunal by means of an ECM system referred to in Part 3 - at the time provided by clause 13 of Schedule 1 to the Electronic Transactions Act 2000, or
(ii) if the notice or document that is served has not been filed in, or issued by, the Tribunal by such means - at the time provided by section 13A of the Electronic Transactions Act 2000.
14 Proof of service of document
If a party to proceedings before the Tribunal is required to serve a document on another person by the Act or these rules, the Tribunal or a registrar may require the party to furnish the Tribunal with such proof of its service as the Tribunal or registrar may require.
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.
Subsection 13(4) of the NCAT Rules identifies when a document is taken to have been served in certain circumstances. With respect to electronic service, the timing of service is dictated by the Electronic Transactions Act 2000 (NSW), section 13A. Where an electronic address has not been designated by the addressee, the time of receipt of the electronic communication is when that communication has become capable of being retrieved by the addressee and the addressee has become aware that the electronic communication has been sent to that address. In the case of service by post, the NCAT Rules provide that the time of service is the end of the seventh working day after the document was posted: r 13(4)(a).
[4]
Principles for substituted service
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).
[5]
The Requirement for Notice
As these are proceedings under the National Law, the objectives and guiding principles of the National Law must be considered. The protection of the health and safety of the public is the paramount consideration; however, another guiding principle is that the scheme is to operate in a "transparent, accountable, effective and fair way": National Law, s 3A.
In applications such as this, there is a requirement that the respondent be given notice of the proceedings. However, where notice is given, in proceedings under the National Law the inquiry may proceed in the absence of the respondent. The giving of notice is an element of giving the person an opportunity to present their case. This is an element of procedural fairness, which is required under the NCAT Act and which promotes transparency and fairness, as required by the National Law.
Nevertheless, as was demonstrated in a different context, the giving of notice is not the same as ensuring that the person has read that notice. In Wojciechowska v Secretary, Department of Communities and Justice [2025] NSWCATAD 2, Hennessy ADCJ considered whether or not the respondent had served the applicant with the relevant material in accordance with the NCAT Rules. Her Honour noted that the effect of Rule 13(2)(g) of the NCAT Rules is that, unless a party consents to electronic service as described in that rule, a document has not been served by sending it to their email address. I pause to add that no order for substituted service had been made in that case.
Her Honour considered whether there had been service by post, in accordance with the NCAT Rules. It was noted that the solicitor for the respondent had caused to be posted the relevant documents; however the Australia Post tracking receipt indicated that the package had been attempted to be delivered but was still awaiting collection at post office, at the time of the hearing. There was, in that case, no suggestion that the address was incorrect. Her Honour noted at [51]-[52]:
"[51] A document may be served on or given to a person 'by posting a copy of the notice or document addressed to the person or body to the person's or body's address for service': NCAT Rules r 13(2)(b). Proof of service by post does not require proof of personal service. I find that, in accordance Rule 13(2)(b)(i) of the NCAT Rules, the agency's open material was served on Ms Wojciechowska by post on 23 January 2024. Mr Sherrington posted a copy of that material to her at her address for service. The Australia Post online tracking document is a contemporaneous record confirming that delivery was attempted on 23 January 2024. It also records that as at 3.08 on 23 January 2024, the letter was 'awaiting collection' at Lenah Valley LPO.
[52] Regardless of whether Ms Wojciechowska received a notice from the Post Office that a parcel was awaiting collection, as a matter of law, the letter has been served by post. The mode of service in Rule 13(2)(b)(i) does not require proof that the material was actually delivered to the person."
The same principles are relevant here. Notice in accordance with the NCAT Rules provides for fairness as well as expedition, both of which are required under the National Law.
[6]
Determination
The purpose underlying the making of an order for substituted service is to provide a mechanism of service, where service by regular means is impractical or likely to be ineffectual.
Here, however, the evidence discloses that there has already been service in accordance with the NCAT Rules. The relevant documents have been left at the door of the respondent's residential address. This is one of the regular methods of service under the NCAT Rules: r 13(2)(c)(ii).
Further, there is no suggestion that the residential address is not correct. It accords with the address held by the Australian Electoral Commission for the respondent.
In matters of this kind, notice must be given; and then the inquiry may proceed in the absence of the respondent. This allows for the proceeding to be dealt with expeditiously, to protect the public, whilst maintaining transparency and fairness. Here, notice in accordance with the NCAT Rules has been given. This is, therefore, not a suitable matter for an order for substituted service.
The applicant nevertheless presses the application on the basis that future documents could simply be served by post and also emailed, to save costs and promote efficiency. The applicant's caution in terms of ensuring notice has been given and to promote efficiency, is in accordance with the National Law and the NCAT Act. However, here, there is no suggestion that the residential address is incorrect; and the NCAT Rules already provide for service by post. There is no need to require that the documents also be emailed. The Tribunal, in any event, has some concerns that the email address provided may not still be active, as there has not been any communication from it since September 2023. That said, there does not appear to be a reason to cease sending confirmatory emails, but that is not something the Tribunal will order must be done.
This does not appear to be a case where there is a genuine concern that notice in accordance with the law is impractical or likely to be inefficacious. On the contrary, the respondent, as the extract of the file note of the phone call suggests, may be choosing not to respond. Sending documents by email is not likely to improve the situation, as emails may go unread, just as post (or packages left at the door) may go uncollected, unopened or unread.
To the extent that there is required to be notices of listing, these too should be served in accordance with the NCAT Rules and, in the absence of a designated email address, this should be by post or by leaving it at the respondent's residential address.
For all of the reasons above, the application for substituted service is refused.
[7]
ORDERS
1. The application for substituted service is refused.
[8]
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: 04 February 2025