Kirby v Health Care Complaints Commission

Grounds of appeal

1. Dr Kirby identified the following grounds of appeal in his Notice of Appeal: 1. The Tribunal erred in giving weight to the undermining of public confidence in the integrity of the HCCC's processes in circumstances where no such argument was advanced on behalf of the HCCC and Dr Kirby was denied the opportunity to address the question of the integrity of the HCCC's processes; 2. The Tribunal erred in failing to find, or to consider adequately, the impact upon Dr Kirby's practice if the prohibition order was published; 3. The Tribunal failed to give appropriate weight to the impact on Dr Kirby's practice and his wife's health of the prohibition order being published in circumstances where Dr Kirby's evidence was unchallenged; 4. The Tribunal erred in making a finding that there was "no end in sight" in relation to the proceedings, in circumstances where the Tribunal could control the litigation and the HCCC had not published over more than four years.
2. In his submissions filed on 19 February 2021, Dr Kirby identified the alleged errors somewhat differently. He claimed that the Tribunal erred in law in: 1. Failing to make necessary findings of fact in order to undertake the evaluative exercise of where the balance of convenience lay for the purposes of granting the stay; 2. Failing to make necessary findings of fact as to the consequence of permitting the publication of the prohibition order then setting aside the order in the future; 3. Making a determination concerning the integrity of the register of prohibition orders in circumstances where no such issue was advanced by either party and where the Tribunal failed to bring to the parties' attention the need for submissions on this issue.

Application for an extension of time to appeal

1. Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) relevantly provides that, except in respect of certain circumstances which are not presently relevant, an internal appeal must be lodged within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later).
2. The Notice of Appeal records that Dr Kirby received the decision on 21 December 2020. The Appeal was lodged on 19 January 2021, about one day beyond the time allowed for filing the notice under rule 25(4)(c) of the NCAT Rules.
3. The respondent does not oppose the grant of an extension of time to appeal pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The relevant principles which generally inform the exercise of our discretion in that regard were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. In circumstances where the delay is very short, the grant of an extension of time is not opposed, and there is no prejudice to the respondent, we have decided to extend time for filing the appeal to the date of lodgement, being 19 January 2021.

Leave to appeal from interlocutory decision

1. Internal appeals from an interlocutory decision may be made with leave (that is, the permission) of the Appeal Panel: s 80(2)(a) of the NCAT Act. There is no dispute that the Decision is an interlocutory decision (see paragraph (a) of the definition of "interlocutory decision" in s 4(1) of the NCAT Act).
2. The principles relevant to the grant of leave to appeal from an interlocutory decision were considered in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54. The Appeal Panel said at [35]: As stated in various decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal, the principles to be applied are to be derived from the principles applicable to leave applications in courts: see for instance, Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6 and BHM v BHN & Ors [2014] NSWCATAP 26. These principles include the following: (1) It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39; (2) However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ; (3) Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] 104 FCR 564; (4) Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative; (5) There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; (6) Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell (1936) 56 CLR 221 at 225-6; (7) In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec); (8) Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9; (9) Lastly, subject to the above, the matters set out in Collins [v Urban [2014] NSWCATAP 17] at [84 (1)-(2)] are also relevant to the exercise of a discretion to grant leave.
3. In Collins v Urban [2014] NSWCATAP 17 at [84], the Appeal Panel considered the principles governing leave to appeal under s 80(2)(b) of the NCAT Act (which provides that leave is necessary if the appeal does not raise a question of law). At [84] the Appeal Panel indicated, relevantly, that it is appropriate to grant leave to appeal under s 80(2)(b) in respect of issues of principle and questions of public importance or matters of administration or policy which might have general application. Those are also circumstances which support a grant of leave to appeal from an interlocutory decision (see Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at 35 above).

Dr Kirby's submissions

1. Dr Kirby submits that leave should be granted to appeal from the Decision because: 1. There is a substantial miscarriage of justice in the Tribunal deciding the matter on a basis not argued before the Tribunal and not raised with the parties; 2. A question arises as to the extent to which mandatory publication of the publication order as set out in s 41E of the HCC Act trumps the entitlement of a practitioner to a stay under s 60 of the Administrative Decisions Review Act; 3. There is a palpable injustice suffered by Dr Kirby in this case, given that the evaluative exercise required by s 60(3) of the Administrative Decisions Review Act reveals a substantial risk of harm to Dr Kirby both professionally and personally and no evidence of any risk to the public; 4. The manifestly wrong decision was made by the Tribunal (see House v The King (1936) 55 CLR 499 ("House v The King") at 505).
2. It is convenient to consider Dr Kirby's grounds of appeal, as these are relevant to whether a "manifestly wrong decision was made to the Tribunal" and to whether he suffered a "palpable injustice."

Ground 1

1. Ground 1 is that the Tribunal erred in giving weight to the undermining of public confidence in the integrity of the HCCC's processes in circumstances where no such argument was advanced on behalf of the HCCC and Dr Kirby was denied the opportunity to address the question of the integrity of the HCCC's processes.
2. Ground 1 relates to the penultimate paragraph of the Decision, being paragraph 40. It is necessary to understand this paragraph in its context.
3. The Tribunal came to the conclusion, at [38], that it was "not persuaded that a stay is reasonably necessary to 'secure the effectiveness of the determination' of the administrative review application in the sense discussed in Loveday at [4]-[8]." As indicated above, s 60(2) of the Administrative Decisions Review Act provides that "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." In Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 at [8], Deputy President Hennessy stated that "the words 'to secure the effectiveness of the hearing' include a situation where the applicant will suffer irreparable loss in the sense that no recompense for it can be obtained if the application is ultimately successful."
4. Section 60(3) of the Administrative Decisions Review Act provides that "[t]he Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account" certain matters, including the public interest. The Tribunal proceeded, at [39], to consider whether it was desirable to make the stay order if, contrary to its primary view, the making of the stay order was reasonably necessary to secure the effectiveness of the determination of the administrative review application. It determined that it was not "desirable" to make that order, for reasons which included that members of the public seeking to enquire about a health practitioner are entitled to expect, as mandated by s 41E of the HCC Act, that any prohibition order made in respect of that practitioner will be recorded in the register.
5. The Tribunal then continued at [40]: I reject the contention that the integrity of the Commission's decision-making processes will be undermined if the Commission publishes the Prohibition Order, and the reasons for that order on its website. I do not accept the proposition that the statement made by the Commission to Dr Kirby in June 2017 - "the Commission does not intend to publish the public statement until the conclusion of the Review proceedings" - can be properly characterised as an "undertaking". In any event, in circumstances where three and a half years have elapsed since that statement was made and, as the Commission points out, there appears to be "no end in sight", in my view, it is entirely appropriate that the decision not to publish be reviewed. The continued deferral of publication has the potential to undermine public confidence in the integrity of the Commission's processes.
6. The last sentence of [40] is the sentence the subject of Ground One.
7. We will assume, for present purposes, that the question of whether publication would undermine public confidence in the integrity of the HCCC's processes was not put to the parties, even though there is no transcript before us which establishes that. On that assumption, we do not consider that the failure to put this to the parties, or the giving of any weight to this factor, has given rise to a substantial miscarriage of justice. The Tribunal did not "decide the matter" on a basis not argued before it, as Dr Kirby suggests. Rather, the Tribunal rejected the stay application on the basis that a stay was not necessary to secure the effectiveness of the determination. The Tribunal's remarks about the undermining of public confidence were made to address the alternative scenario (that is, whether it would be desirable to make the order in the event that, contrary to the Tribunal's finding, the stay was necessary to secure the effectiveness of the determination).

Ground Two

1. Ground Two is that the Tribunal erred in failing to find, or to consider adequately, the impact upon Dr Kirby's practice if the prohibition order was published.
2. The Tribunal considered the impact of publication upon Dr Kirby's practice, at [36]: It is difficult to predict how Dr Kirby's patients, and any prospective patients, might react if they were to learn that the Prohibition Order had been made and published on the Commission's website. It may cause some patients to reconsider their choice of practitioner and, in turn, damage Dr Kirby's practice. Equally, some patients may consider it to be of little consequence. The available material, in my view, falls well short of supporting Dr Kirby's feared "worst case scenario" that the Publication Order may destroy his practice. Nonetheless, I accept that the publication on the Commission's website of the Prohibition Order and the accompanying statement of reasons, has the potential to be damaging to Dr Kirby's practice and those engaged by the practice.
3. The Tribunal rejected Dr Kirby's submission that the publication order may destroy his practice but accepted that it could be damaging to the practice.
4. In his written submissions, Dr Kirby alleges that the Tribunal was required to, but failed to, make findings of fact concerning the significance of the risk associated with publication. That is a submission not entirely captured by this ground of appeal. In any event, the Tribunal was considering the likely consequences if an order was published. We consider that it complied with any obligation it had to make factual findings, by finding that publication had the potential to damage Dr Kirby's practice.
5. We are not persuaded that Ground Two has any merit.

Ground Three

1. Ground Three is that the Tribunal failed to give appropriate weight to the impact on Dr Kirby's practice and his wife's health of the prohibition order being published, in circumstances where Dr Kirby's evidence was unchallenged.
2. Dr Kirby's written submissions refer to his evidence that he had complied with the prohibition order and that he had concerns about the professional and personal risks associated with publication both for himself and for his wife. The Tribunal accepted that publication has the potential to be concerning to Dr Kirby's wife who has a health condition (at [37]).
3. The Tribunal referred to Dr Kirby's affidavit evidence that he has "complied completely" with the Prohibition Order and that he had dissociated himself from any interest in respect of Cansema like products since May 2015 (at [23]). Although the Tribunal did not state that it accepted that evidence, it did not take any potential non-compliance into account as a factor against the grant of a stay.
4. The question of how much weight should be given to the impact of the publication on Dr Kirby's practice and his wife's health was a matter for the Tribunal. It gave those matters some weight, but found that they did not cause Dr Kirby "irreparable loss in the sense that no recompense for it can be obtained if the application is ultimately successful" (citing Loveday). That was because it found that, if Dr Kirby were ultimately to be successful, the prohibition order or "publication order" (as the Tribunal referred to it) may be set aside or varied (at [38]).
5. We are not persuaded that the weight given to Dr Kirby's evidence has caused him any substantial injustice. Although the Tribunal reached a decision contrary to his interests, that does not mean that the decision was unjust.

Ground Four

1. Ground Four is that the Tribunal erred in making a finding that there was "no end in sight" in relation to the proceedings, in circumstances where the Tribunal could control the litigation and the HCCC had not published the prohibition order for more than four years.
2. The Tribunal's comment that there appears to be "no end in sight" was made in [40], which is set out above. The comment reflects the Tribunal's earlier findings (at [18] and [19]) that Dr Kirby had two applications pending in the courts in relation to the proceedings.
3. The Tribunal's comment relates to the Tribunal's consideration of whether it would be desirable to make a stay order if, contrary to the Tribunal's view, that would be appropriate to secure the effectiveness of the determination. Given that it had found that a stay order was not appropriate to secure the effectiveness of the determination, any error it made in considering an alternative scenario is not productive of a substantial miscarriage of justice or palpable injustice. We are not satisfied, in any event, that the comment constituted a factual or legal error.

Other submissions

1. Dr Kirby made a number of other submissions, both orally and in writing, about purported errors made by the Tribunal, which did not appear to us to be captured by his grounds of appeal. Dr Kirby was legally represented on the appeal and did not make any application to amend his grounds of appeal.
2. We have reviewed the submissions which went beyond the grounds of appeal and we are not persuaded that they provide a proper basis to grant leave to appeal.

Conclusion

1. For these reasons, we have decided not to grant leave to appeal from the Decision. There are no substantial reasons to allow an appellate review. We do not consider that a substantial injustice would result from the refusal to grant leave.

Further issue

1. We raised at the hearing the question of whether the Tribunal had power, under s 60 of the Administrative Decisions Review Act, to stay the HCCC's decision to publish the prohibition order. The HCCC made plain that it did not propose to publish the public statement.
2. The HCCC is empowered, under s 41A(2)(a) of the HCC Act to make a prohibition order that, amongst other things, prohibits a health practitioner from providing health services or specified health services. It may also cause a public statement to be issued identifying and giving warnings or information about the health practitioner and health services provided by the health practitioner, pursuant to s 41A(2)(b) of the HCC Act.
3. If the HCCC decides to make a prohibition order, or to issue a public statement about the health practitioner, it must provide the health practitioner with a written statement of the decision (HCC Act, s 41B(1)). The HCCC may make the statement of decision publicly available (HCC Act, s 41B(3)(c)). That was not proposed in this case, by the time of the Decision.
4. By s 41E of the HCC Act, the HCCC is to keep a register containing copies of all prohibition orders in force and cause the contents of the register to be made available for inspection free of charge by the public on its website. That is the provision under which the HCCC proposed to (and ultimately did) publish the prohibition order against Dr Kirby.
5. A health practitioner may apply to the Tribunal for an administrative review, under the Administrative Decisions Review Act, of a decision to make a prohibition order, or to issue a public statement about the health practitioner (Act, s 41C(a)(b), (c)). However, as Dr Kirby accepts, the publication of a prohibition order is not a reviewable decision.
6. Following the hearing of the appeal, the parties were directed to provide and provided written submissions addressing the issue of whether the decision to publish a prohibition order may be the subject of a stay.
7. Mr Sheller SC, for Dr Kirby, submitted that, s 60(2) of the Administrative Decisions Review Act authorised such an order, because of its broad language, "staying or otherwise affecting the operation of the decision under review." He relied upon AVS Group of Companies Pty Ltd v Commissioner of Police (2010) 78 NSWLR 302 (see esp at [18] and [97]). Mr Sheller SC submitted that the decision under review was the making of the prohibition order, and an order restraining the HCCC from publishing that order is an order "otherwise affecting the operation" of the decision to make the prohibition order.
8. Ms Lowson, for the HCCC, submitted that s 41E of the HCC Act is mandatory and there is no discretion available to the respondent in relation to the keeping of in-force prohibition orders on the register. In her submission, the HCCC does not "decide" to publish a prohibition order, it is required to place one on the register. She pointed out that the terms of the stay order sought by Dr Kirby misleadingly referred to an "order" made by the respondent to publish the prohibition order. However, had Dr Kirby sought an order directing the HCCC not to place the prohibition order on the register of prohibition orders kept under s 41E of the HCC Act, the Tribunal would have not had power to make that order. Such an action would not "affect the operation" of the prohibition order, given that the operation of that order is to permanently restrain Dr Kirby from applying cansema and other salves. It follows, in Ms Lowson's submission, that s 60(2) of the Administrative Decisions Review Act was not available to make an order staying the publication of the prohibition order.
9. It is not necessary for us to determine this controversy, given that we have decided, for other reasons, not to grant leave to appeal. However, given that the matter was argued, we make the following comments.
10. We incline to the view that the Tribunal does not have power to stay, or to make an order restraining, the publication of a prohibition order in accordance with s 41E of the HCC Act. Section 41E is in mandatory terms and appears to evince a legislative intention that the public be informed of all interim and final prohibition orders which are "in force", irrespective of whether they are subject of review. Further, there is some force in the HCCC's argument that publication of a prohibition order would not affect its operation. However, in the circumstances, we do not express a concluded view.

Orders

1. For the reasons given above, we make the following orders: 1. The time for lodging the Notice of Appeal is extended to 19 January 2021. 2. Leave to appeal is refused. 3. The appeal is dismissed.

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: 31 May 2021