Health Care Complaints Commission v Tsolis

Meaning of phrase "before an inquiry or appeal is completed or a decision is made in respect of an inquiry or appeal" in s 165C(1) of the National Law

Principles of statutory interpretation

1. In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405 at [14], Kiefel CJ, Nettle and Gordon JJ summarised the contemporary approach to statutory construction: The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
2. Considerations of context and purpose include the consequences of adopting the ordinary or grammatical meaning: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384; [1998] HCA 28; 153 ALR 490 at [78]: The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

The text

1. Section 165C(1) identifies two circumstances, either of which must be present, before the inquiry or appeal may be continued without one of the non-presiding members. The first circumstance is "before an inquiry or appeal is completed" and the second circumstance is before "a decision is made in respect of an inquiry or appeal". These proceedings are not an appeal. They were commenced by way of a complaint by the Health Care Complaints Commission. The Tribunal is constituted to conduct an inquiry. A "decision" (the Stage 1 decision) has been made in respect of an inquiry.
2. The Macquarie Dictionary definition of "inquiry" retrieved on 30 April 2024 is as follows: noun (plural inquiries) 1. an investigation, as into a matter. 2. the act of inquiring, or seeking information by questioning; interrogation. 3. a question; query. -phrase 4. make inquiry (or inquiries), to request information: to make inquiries at the office.
3. The ordinary grammatical meaning of the words "an inquiry" or "the inquiry" in s 165C(1) is an investigation into a matter, such as a complaint referred to the Tribunal. The Tribunal is constituted to conduct "an inquiry" or "the inquiry". An inquiry is distinct from "a decision ... in respect of an inquiry". The Tribunal's decision making function is a separate statutory task.
4. If my understanding of the text is correct, the inquiry has not yet been completed, even though a Stage 1 decision has been made in respect of an inquiry. The legislative context, the purpose of the provision and the consequences of an alternative meaning support that interpretation.

The context

1. The ordinary grammatical meaning of the words "an inquiry" or "the inquiry" as being a single inquiry is consistent with the legislative context. Part 8 of the National Law is headed "Health, performance and conduct". Division 10 is headed "Constitution and proceedings of Tribunal". The provisions in Division 10 apply "despite anything to the contrary in the Civil and Administrative Tribunal Act 2013 (NSW)": s 165A. Subdivision 2, relating to the constitution of the Tribunal, contains s 165B (Constitution of Tribunal for complaints, applications and appeals [NSW]) and s 165C (Effect of vacancy on Tribunal [NSW]).
2. I have underlined the word "inquiry" where it appears in s 165B of the National Law. 165B Constitution of Tribunal for complaints, applications and appeals [NSW] (1) If a complaint is referred to the Tribunal or an application or appeal is made to the Tribunal under this Law - (a) the Tribunal must inform the Council for the health profession of the referral, application or appeal; and (b) the Council for the health profession must select 3 persons (whether or not they are currently Division members) to sit as members of the Tribunal in the proceedings. Note - Schedule 5 to the Civil and Administrative Tribunal Act 2013 provides the President must appoint a person as an occasional member for particular proceedings entered in the Health Practitioner List if that person has been selected for participation in the proceedings in accordance with any applicable procedures specified by or under this Law. If a person selected under subsection (1) (b) is not already a Division member, the President will be required to appoint the person as an occasional member in relation to the proceedings. (2) Except as provided by subsections (4), (5) and (5A), the Tribunal, when conducting an inquiry or hearing an appeal under this Law, is to be constituted by - (a) 1 Division member who is an Australian lawyer of at least 7 years' standing or, in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer; and (b) 2 health practitioners selected for appointment by the Council as occasional members under subsection (1) (b) who are registered in the same health profession as the health practitioner or student the subject of the inquiry or appeal; and (c) 1 lay person (that is, a person who is not registered in the health profession) selected for appointment by the Council as an occasional member under subsection (1) (b) from among a panel of lay persons for the time being nominated by the Minister. (3) If the health profession has divisions, at least one and, if practicable, both, of the health practitioners referred to in subsection (2) (b) must be registered in the same division of the health profession as the health practitioner or student the subject of the inquiry or hearing. (4) The Tribunal, when constituted to hear appeals under this Law that are restricted to points of law, is to be constituted by - (a) in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer; or (b) in any other case, 1 Division member who is an Australian lawyer of at least 7 years' standing. (5) The Tribunal, when constituted to exercise a function under section 146D or 148G, is to be constituted by a Division member selected by the Tribunal List Manager. (5A) The Tribunal, when constituted to make an ancillary decision or an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013, is to be constituted by the Tribunal List Manager or the member referred to in subsection (2) (a). (6) A person is not to be selected to sit on the Tribunal if the person is a member of the Council. (7) An inquiry or appeal conducted or heard by the Tribunal under this Law may relate to more than one health practitioner or student if the complaint or complaints the subject of the inquiry or appeal arise from the same conduct. (Emphasis added.)
3. This provision envisages the Tribunal being constituted to conduct a single inquiry. That is apparent from the use of the words "an inquiry" or "the inquiry" in s 165B. It is also apparent from the way the Court of Appeal has described the steps involved in conducting "an inquiry" in Health Care Complaints Commission v Robinson [2022] NSWCA 164. The meaning of the words in s 165B of the National Law was not in issue but Simpson AJA characterised the Tribunal's task when conducting an inquiry in the following way at [52]: It was necessary that there be an inquiry into the complaints conducted in the "Health Practitioner List" of the Occupational Division of the Tribunal. That inquiry involved, essentially, four steps: (1) determination of the facts relevant to the complaints, and, in particular, resolution of any disputed factual allegations; (2) determination of whether the facts found established that the respondent's conduct (whether by the individual components or any combination of those components) constituted unsatisfactory professional conduct (as defined in s 139B(1)(a), (b) and (l); and (3) if the Tribunal found that the facts established unsatisfactory professional conduct, determination of whether that conduct was sufficiently serious to justify suspension or cancellation of the respondent's registration and therefore constituted professional misconduct; and (4) if the Tribunal found that the facts established either unsatisfactory professional conduct or professional misconduct, determination of what, if any, consequential orders should be made. The Tribunal, with the agreement of the parties, decided to conduct the inquiry in two stages. (Emphasis added.)
4. Simpson AJA also noted that, "[T]he Tribunal, with the agreement of the parties, decided to conduct the inquiry in two stages." Despite the fact that the proceedings were split in that way, my understanding of Simpson AJA's analysis is that the Tribunal's statutory task is to conduct a single inquiry involving the four steps outlined above.
5. One issue in that case was whether the practitioner could appeal as of right on a question of law from a Stage 1 decision. The Court held that a decision made at Stage 1 of an inquiry, that a health practitioner is guilty or not guilty of unsatisfactory professional conduct or professional misconduct, is a "profession decision" under clause 29(1) of Schedule 4 to the NCAT Act. Such a decision is not an "interlocutory" or an "ancillary" decision so an appeal lies as of right to the Court of Appeal on a question of law.
6. Contrary to the respondent's submission, it cannot be inferred from the following passages at [40] and [110], that Simpson AJA considered that a Stage 2 hearing was a "separate subsequent inquiry": 40. ... On 14 September 2021, after an inquiry that proceeded over 10 days in 2020 and 2021, the Tribunal found the respondent guilty of unsatisfactory professional conduct. It declined to find the respondent guilty of professional misconduct: Health Care Complaints Commission v Robinson [2021] NSWCATOD 142 ("Reasons"). It deferred for further consideration what orders should be made consequent upon those conclusions. ... 110. By s 38 of the CAT Act, subject to any legislative prescription, the Tribunal may determine its own procedure. It may, as in this case, do so by deciding to adopt a two stage procedure. That does not necessarily entail a rigid division of the issues into (i) whether unsatisfactory professional conduct or professional misconduct is established (as Stage 1) followed by (ii) an inquiry into what consequential orders ought to be made (as Stage 2). There may be occasions where a more satisfactory course would be to decide any disputed factual issues at Stage 1, and defer the characterisation of the conduct so found to Stage 2. That is a matter for the Tribunal's own determination in the particular circumstances of any particular case. (Emphasis added.)
7. The underlined words in these passages merely refer to the first or second stage of "an inquiry". That inference is apparent from Simpson AJA's characterisation of an inquiry at [52] quoted above.
8. The respondent submits that s 165C(1) of the National Law does not contemplate the vacation of a Tribunal member after a Stage 1 decision has been made. That is because the Stage 1 decision is "underpinned by the completion of an inquiry".
9. In addition, the respondent submits that because the Court of Appeal concluded that findings of unsatisfactory conduct amount to a "profession decision" (as defined in clause 29(1)(d) of Schedule 4 to the National Law) and carry rights of appeal, the Stage 1 decision "rests upon a lawful inquiry". According to the respondent, if a decision arising from a hearing was not issued at the completion of a lawful inquiry, that decision would be afflicted with jurisdictional error for failure to properly exercise jurisdiction. It follows that each hearing or "stage" that is convened to render a "profession decision" is an inquiry that underpins a decision. In the present case, an inquiry has been completed and a decision has been made in respect of an inquiry. To contend that an inquiry is yet to be complete would be a concession that the inquiry that underpins the Stage 1 decision is incomplete.
10. That interpretation is said to be supported by the fact that the National Law does not envisage splitting the proceedings into two stages. The matters to be contested at each stage must be identified before either stage can be commenced, to avoid procedural unfairness.
11. The respondent's interpretation of s 165C does not accord with the ordinary grammatical meaning of the words "an inquiry" read in context or with Simpson AJA's characterisation of an inquiry as involving a four step process: Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [52]. The Stage 1 decision in this case made findings and determinations about the matters listed in steps 1, 2 and 3. The inquiry is not complete because the Tribunal has not undertaken step 4. There is no jurisdictional or other barrier to the Tribunal continuing with an inquiry in circumstances where it has made a Stage 1 decision.

Purpose and consequences

1. The purpose of s 165C of the National Law is to allow "an inquiry" to be continued in certain circumstances despite a non-presiding member vacating office. The cost and inconvenience of re-commencing the proceedings will be avoided. That purpose is consistent with the ordinary grammatical meaning of the words read in context. Contrary to the respondent's submission it is not "troubling" that a Tribunal constituted by three, instead of four, of the original members may continue with the inquiry when one of those non-presiding members vacates office. Nor would continuing the proceedings be procedurally unfair. Rather, such an outcome is in accordance with the following guiding principles of the National Law in s 3A: 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; …
2. The protection of the health and safety of the public is promoted when proceedings are conducted in a transparent, accountable, efficient, effective and fair way.
3. As to the consequences of a particular interpretation, the respondent submits that if his interpretation is not accepted, the words "before a decision is made in respect of an inquiry or appeal" in s 165C(1) of the National Law would have no separate work to do. The High Court has held that "A construction of that kind should not be adopted.": Plaintiff M 70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [97]. But that is not the case here because I do not accept the respondent's submission that an inquiry is complete on the making of the Stage 1 decision.
4. Alternatively, the respondent submits that even if an inquiry has not been completed, the National Law recognises that a vacation may occur before the conclusion of the inquiry but does not permit the Tribunal to be altered after such time as a decision is made in respect of the inquiry. If it were the case that a vacation could occur at any time up until the completion of an inquiry, regardless of whether a decision is made, then the legislature would have phrased the provision in those terms. That conclusion is not available because, on my interpretation, s 165C(1) identifies two circumstances, either of which must be present, before the inquiry or appeal may be continued without one of the non-presiding members.
5. Finally, the respondent submits that the just, quick and cheap resolution of this matter is simply for the Tribunal to elect not to continue with the inquiry. For the reasons I have given, the inquiry should be continued.

Orders 1. The inquiry should be continued and a determination made by the remaining members of the Tribunal. 2. The proceedings are listed for directions at 10:50 am on 10 May 2024 to set down a timetable and date for the Stage 2 hearing.

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: 03 May 2024