Kirbach v Health Care Complaints Commission

Grounds for stay application

1. The Tribunal has power to stay a decision pursuant to s 60 of the Administrative Decisions Review Act 1997 (NSW): 60 Operation and implementation of decisions pending applications for administrative review (1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. (4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.
2. Mr Kirbach says he accepts responsibility for the wrong he has done and has not applied for a review of the prohibition order. He requests a stay either so that the entire public statement is removed from the website or so that the public statement is revised so that it contains much less personal information about himself and his family and does not record his criminal conviction and sentence.

Secure the effectiveness of the hearing

1. The first requirement of 60 of the Administrative Decisions Review Act is that a stay is appropriate to secure the effectiveness of the determination of the application.
2. The public statement was issued on 22 June 2015. Mr Kirbach applied for a stay on 27 August 2015 following discussion at a directions hearing on 18 August 2015. Mr Kirbach is self-represented and should not be criticised for failing to act more quickly. Nevertheless it is now some four months since the statement was published.
3. Mr Kirbach says he is experiencing difficulties finding employment even as a labourer. He suspects that prospective employers are accessing the internet, reading the public statement and then deciding not to employ him. while there is no other evidence that that is the case, it is a plausible inference. Mr Kirbach has also said that he is distressed because others, including members of his own family, are able to read personal information about his father which they did not know about previously.
4. I am satisfied that a stay is necessary to secure the effectiveness of the hearing because Mr Kirbach may suffer further irreparable loss and damage if the public statement is not removed or amended. He is not eligible for any compensation for that loss or damage even if the Tribunal sets aside the administrator's decision: Denney v Director-General, Department of Transport [2001] NSWADT 90 at [27].

The interests of any persons who may be affected

1. According to Mr Kirbach, both his interests and the interests of his family will be affected if the public statement remains on the Commission's website. His interests are affected because potential employers who search his name on the Internet will find the public statement. Even though he is not seeking work as a social worker or counsellor, that knowledge is likely to affect his employment prospects. It is more difficult to discern a connection between the interests of members of Mr Kirbach's family and the public statement remaining on the website. Members of the family will have had access to the information for the last four months. The harm, if any, has already been done.

Public interest

1. Mr Kirbach's submission is that the public statement contains highly personal and sensitive allegations and information that impact on the well-being and privacy of his family. He says that the publication of his name necessarily identifies his children who now have access to personal information relating to himself and other members of his family. He cannot see how this level of detailed information can be necessary for the protection of the public.
2. According to the Commission, the public interest in alerting members of the public to the conduct in which Mr Kirbach engaged and the penalties that have been imposed outweighs any prejudice to Mr Kirbach. The public statement supports the prohibition order because it advises the public that the order has been made in circumstances where they may not otherwise have been aware of that fact. The Commission added that it has no power to prevent Mr Kirbach from seeking employment or working as a social worker in another State or Territory and that the public statement alerts potential employers across Australia to Mr Kirbach's previous behaviour.
3. I accept that the protection of the public is a matter that should be given significant weight in an application of this kind: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [91]. I also accept that the issuing of the public statement serves a public interest purpose in this case. It alerts members of the public and prospective employers to the conduct in which Mr Kirbach has engaged and may protect the public from any future conduct of the same kind in which Mr Kirbach seeks to engage. However, there is virtually no risk that Mr Kirbach will attempt to seek employment as a social worker either in New South Wales or elsewhere, or engage in the kind of behaviour for which he has been disciplined while these proceedings are on foot. In those circumstances the public interest is not so significant in the short term that it should override Mr Kirbach's interests.
4. The Commission has power to make a prohibition order or issue a public statement or to do both: Health Care Complaints Commission Act, s 41A(2). In this case it decided to do both. A public statement is to be issued "in a manner determined by the Commission identifying and giving warnings or information about the health practitioner and health services provided by the health practitioner." There is some doubt as to whether the Tribunal has power to stay the decision by amending the content of the public statement. The preferable decision is to stay the issuing of the public statement. The effect of that order is that the public statement is to be removed from the Commission's website pending further order of the Tribunal.

Order The decision of the Health Care Complaints Commission to issue a public statement in relation to Mr Kirbach is stayed pending further decision of the Tribunal. 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: 15 March 2023