Health Care Complaints Commission v Watson [2016] NSWCATOD 67 | Case summary

NCAT Occupational|2016-02-19

Introduction

On 18 December 2015 following disciplinary proceedings brought by the Health Care Complaints Commission (the HCCC) against an enrolled nurse, Mr Andrew Watson (the practitioner), the Tribunal published its written reasons and decision. The decision noted that, under s 149C (4) of the Health Practitioner Regulation National Law, (the National Law), if the practitioner was still registered on the register of health practitioners maintained by the Australian Health Practitioner Regulation Agency (AHPRA) it would have cancelled his registration. The Tribunal requested its decision be recorded on the register.
The Tribunal also ordered that the practitioner be precluded from applying to be re-registered for a period of two years.
On 8 February 2016, Ms F Westwood, Legal Officer, on behalf of the HCCC wrote to the presiding member of the Tribunal advising there was an error in the orders made and noting: As the letter from AHPRA sets out, [the practitioner's] registration was suspended on 4 November 2013. [t]he practitioner] is taken to not to be registered during the period of suspension other than for the purposes of Part 8 of the Health Practitioner Regulation (National) Law (NSW) ("the National Law"). Part 8 of the National Law deals with Health, performance and conduct matters and includes the powers for the making of protective orders by the Tribunal.
The letter goes on to apologise to the Tribunal for "the error in the submissions in relation to protective orders". It is not subject of dispute that written submissions provided to the Tribunal at [40]-[43] set out the orders sought by the HCCC. The proposed orders sought were made by the Tribunal. Ms Westwood, on behalf of the HCCC, also sought that two errors or slips in respect of the representation of the parties noted on the cover sheet be corrected. No basis for the amendments sought was set out in the letter.
The matter was listed before me on 19 February 2016 in my capacity as List Manager. Attempts by the Registry staff to notify the practitioner of the listing by telephone were unsuccessful. He did not appear in person or by telephone on 19 February 2016.

Available remedies to correct the orders

It is clear that the orders were based on the written submissions filed on behalf of the HCCC. A letter from AHPRA, which is annexed to the HCCC's letter, discloses that on 4 November 2013 the practitioner's registration was suspended by the NSW Nursing and Midwifery Council under s 150 of the National Law. Accordingly, the orders made are wrong in form. The correct order is an order that, under s 149C (1) (b) of the National Law, the practitioner's registration is cancelled.
The remedies that are available under the Civil and Administrative Tribunal Act 2013 (NSW), the regulations made under that Act, the National Law, and the general law are extensively discussed by me in Health Care Complaints Commission v Mitchell [2016] NSWCATOD 66 and it is unnecessary that I repeat all that I said in that matter. In that case the error was an error of the Tribunal, rather than, as in this case, an error that has occurred as a result of mistake in a document relied on by the HCCC before the Tribunal.

The Civil and Administrative Tribunal Regulations.

As in Health Care Complaints Commission v Mitchell, this is a matter where an application under Reg 9 (2) of the Civil and Administrative Tribunal Regulation 2013 (the regulations) could be employed to correct the error in the decision. However, such an application must be one consented to by both parties. The practitioner appeared by video link from Mt Isa Court House for the hearing, so the second limb of s 9(2) which relates to an order made in the absence of a party has no application. It does not appear that the HCCC approached the practitioner to seek his consent to the amendment before writing to the Tribunal, although a copy of the HCCC's letter to the Tribunal was forwarded to him by post.
While this remedy is potentially available, it is useful to consider other remedies that may be less time consuming to correct the orders and to ensure the register maintained by AHPRA on behalf of the Nursing and Midwifery Board of Australia is up to date.

Section 53 of the Civil and Administrative Tribunal Act.

Section 53 of the Civil and Administrative Tribunal Act provides as follows: 53 Amendments and irregularities (1) The Tribunal may, in any proceedings, make any amendments to any document (for example, an application or appeal) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings, and (b) on such terms as the Tribunal thinks fit, but may only be made after giving notice to the party to whom the amendment relates. (3) If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise. (4) The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings.
Here the error was caused by the mistake in the orders sought in the written submissions of the HCCC lodged with the Tribunal. An amendment may be to a document "at any time in the proceedings" but only after giving notice to the other party. In this case the HCCC have notified the practitioner of the amendment sought, not to the written submissions, but to the orders themselves, although such necessary amendment may be inferred by the content of the HCCC's letter. Under s 53 (4) the Tribunal may set aside a decision in the proceedings in whole or part if an irregularity has occurred because of non-compliance with a provision of the Act or the procedural rules.
Section 53 appears to envisage a re-opening before a Tribunal constituted under the enabling legislation (the National Law) to amend a document, or to cure an irregularity, and then the making of new orders based on the corrected document. I am satisfied that process could have been employed in this matter if the orders sought in the application for disciplinary orders and findings, or the written submissions, had been amended. The HCCC's letter could be seen, in effect, as an informal application to amend the orders sought in the initiating application and in the written submissions.

Section 61

Section 61 of the Civil and Administrative Act deals with when a decision of the Tribunal is made in matters other than administrative law matters. It is in similar terms to s 165E of the National Law. The differences between s 61 (and s 165E of the National Law) and r 36 of the Uniform Civil Procedure Rules 2005 (NSW) are discussed by me in Health Care Complaints Commission v Mitchell. Adopting the reasoning in that case, I am satisfied would be open to the HCCC to seek to re-open and have the order amended.

Section 63

Part 4 of the Civil and Administrative Tribunal Act deals with practice and procedure. Each of the provisions of the Part is subject to enabling legislation (in this case the National Law). There is no codification of the common law slip rule in the National Law nor is any provision in the National Law inconsistent with s 63. Thus s 63 may be applied in these proceedings. Section 63 is found in Div 5D of Part 4. It provides as follows: 63 Power to correct errors in decisions of Tribunal (1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member. (2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct. (3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where: (a) there is an obvious clerical or typographical error in the text of the notice or statement, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect of form, or (d) there is an inconsistency between the stated decision and the stated reasons.
In Health Care Complaints Commission v Mitchell I discussed a similar error in the text of the decision to the error in this matter, albeit that in this case the error occurred because of the mistake in the written submissions relied on by the HCCC. I adopt that reasoning in this matter.
Section 63 provides the President, or the Presiding Member may direct the Registrar to amend the order. In this case the Presiding Member's term has expired. As a matter of convenience and practicality, I propose to request the Registrar to refer this matter to the President for his consideration, and if deemed appropriate to do so, for him to authorise the Registrar to amend the decision of the Tribunal made 18 December 2015.

Costs

Schedule 5D cl 12 empowers the Tribunal to make an order for costs. A costs order was made in the substantiative proceedings that the practitioner pay the HCCC's costs of the proceedings.
This application is necessitated, at least to a substantial degree, as a direct result of the mistake made in the HCCC's submissions to the Tribunal. I am satisfied it would not be appropriate for the costs of the appearance on 19 February 2016 or any costs associated with that appearance to be borne by the practitioner. Accordingly, no order for costs associated with that application will be made.

ORDERS 1. The Registrar is requested to provide a copy of these reasons to the President for consideration of amendment of the orders made 18 December 2015 under s 63 of the Civil and Administrative Tribunal Act 2013 (NSW). 2. No order as to costs

Amendments [1], [4],[7],[12],[13],[15],and[17] 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 27 May 2016 - Amendments [1], [4],[7],[12],[13],[15],and[17] 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: 27 May 2016

Civil and Administrative Tribunal Regulation 2013(NSW)

Health Practitioner Regulation National Law Uniform Civil Procedure Rules 2005(NSW)

Health Care Complaints Commission v Watson

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