Mohareb v Health Care Complaints Commission

Factual background

1. On about 4 December 2017, Mr Mohareb sustained significant fractures to his lower jaw during a home invasion. He was taken by ambulance to Royal North Shore Hospital ('RNSH') where emergency surgery was performed on him by Dr Jeon Cha, plastic surgeon, on 6 December 2017. Mr Mohareb was discharged from RNSH on about 15 December 2017 in circumstances where he alleges that he was suffering from severe vertigo caused by head trauma, and when he was otherwise too sick to care for himself. He was scheduled for a follow-up appointment at RNSH on 20 December 2017, but he failed to attend.
2. Mr Mohareb underwent a further procedure at RNSH on 8 February 2018 but he continued to experience problems with his jaw. Two remedial surgeries were performed at RNSH on 7 April 2018 and on 5 February 2019. Mr Mohareb alleges that these surgeries did not fix the problems with his jaw and that he continues to suffer from a variety of symptoms to this day.
3. On 29 July 2022, Mr Mohareb sent an email to the Chief Executive Officer of RNSH attaching a letter and four medical reports. The subject matter of the email reads "To the Attention of RNSH Chief Executive - Notice of Contemplated Legal Action for Medical Negligence". The text of the letter attached is as follows:- "Dear Sir/Madam I am writing to you in relation to three, incompetent, negligent & failed surgical operations which were undertaken on me by your surgeons, at the Plastics & Reconstruction section of your hospital. The first of those three surgical operations was an emergency operation which took place in the first week of December 2017 on my lower jaw which had been severely fractured as a result of an attack on me. The two subsequent surgical operations took place on 7th April 2018 and on 5th February 2019 and were undertaken to supposedly fix the failure of the above-mentioned first emergency operation. Pursuant to the above, I consulted with and sought the assistance of several maxillofacial surgeons, all of whom agreed that: - Your surgeons at the Plastics & Reconstruction section did not have the qualifications, competence or experience which would enable and/or entitle them to lawfully undertake maxillofacial surgical operations, and certainly not one involving severe & complex facial trauma, as it was in my case. - A remedial surgical operation was required to be undertaken, on me, to fix and correct the failure of your surgeons' initial emergency surgical operation. For your reference I attach copies of letters/reports of maxillofacial surgeons: - Dr. Michael Bowler - dated 30th July 2018 - Dr. Khaled Zoud - dated 19th December 2018 - Dr. Alan Samakeh - dated 26th May 2021 - who, in his capacity as an oral & maxillofacial surgery registrar with Westmead hospital, informed me - as per a copy of his letter - of the fact that the complexity of my case is beyond the competence available at the Maxillofacial Surgery Department of Westmead hospital, and suggested that my only avenue would be with someone like the above-mentioned Dr. Michael Bowler who specialises in facial trauma cases like mine. Further and pursuant to the above, I attach, in further confirmation, copy of medico-legal report - dated 22nd April 2021 - prepared by maxillofacial surgeon Dr Nigel Curtis, which confirms the incompetence and negligence of the Royal North Shore surgeon, namely Dr. Jeon Cha, who undertook the first, incompetent, negligent & failed emergency surgical operation on me. In view of the above, your prompt response with an acceptable resolution to the above would be gratefully appreciated, failing which I will be left with no other option than to commence legal proceedings against RNS Hospital & the North Sydney Local Health District. Regards Nader Mohareb" [sic]
4. On 30 July 2022, Mr Mohareb forwarded the email with the letter and four medical reports to the Commission.
5. On 10 August 2022, the Commission wrote to Mr Mohareb, acknowledging receipt of his complaint and providing him with some information about how a complaint is assessed, the possible outcome of a complaint, who makes a decision about a complaint and the likely time for the assessment of a complaint.
6. The Commission treated Mr Mohareb's email as two separate complaints, one concerning RNSH and the other concerning Dr Cha.
7. On 6 October 2022 the Commission wrote to Mr Mohareb informing him of its decision with respect to RNSH ('the Primary Decision'). It noted that the circumstances giving rise to his complaint were being investigated and managed by the Northern Sydney Local Health District ('NSLHD') as a claim in negligence. The Commission wrote:- "Based on these findings the Commission is satisfied that the subject-matter of the complaint is the subject of legal proceedings and may be discontinued. In this regard, section 27(1)(c) of the Health Care Complaints Act is noted and outlines that the Commission can assess a complaint for no further action if the issues covered have been part of current or past legal proceedings."
8. Mr Mohareb was advised that he could seek a review of the decision within 28 days of the date of the letter.
9. On the same day, Mr Mohareb emailed the Commission's delegate, noting there were presently no legal proceedings filed or served on either RNSH or NSLHD with respect to the circumstances of the complaint.
10. The Commission responded by email on 12 October 2022 as follows:- "Hi Nader, Thanks for your email. I apologise for the confusion. We were advised that RNSH is already aware of your concerns and is managing your complaint as an unlitigated claim in negligence. This means that while there are no current Court proceedings, a negligence claim is still being managed. I hope this clarifies your concerns. Please feel free to follow up if you have outstanding questions. Kind regards,"
11. Mr Mohareb responded in two further emails on 12 October 2022 in which he requested an explanation of how an unlitigated claim in negligence can be a reason to discontinue a complaint pursuant to s 27(1)(c) of the Health Care Complaints Act 1993 ('the Act') and doubting that RNSH could be a competent body to investigate itself, as he perceived it to have a conflict of interest in the investigation.
12. On 13 October 2022, the Commission wrote to Mr Mohareb telling him that his complaint against Dr Cha was still open but that the Commission was finalising its assessment. He was again reminded that he could seek a review of the Primary Decision.
13. On 14 October 2022, Mr Mohareb again emailed the Commission. He reiterated that his complaint was not presently the subject of any legal proceedings and that he did not believe that RNSH or NSLHD could credibly conduct an investigation.
14. On 3 November 2022, the Commission sent an email to Mr Mohareb attaching their assessment decision with respect to Dr Cha. The Commission said that after consultation with the Medical Council of New South Wales ('the Medical Council'), it had decided to refer the matter to the Medical Council as it was considered the most appropriate body to manage the concerns about Dr Cha's professional performance.
15. On 4 November 2022, Mr Mohareb sent an e-mail responding to the Commission's assessment decision letter. In brief, Mr Mohareb contended that it would be incorrect and inappropriate to hold Dr Cha solely responsible for what had occurred and outlined a range of concerns with respect to his care at RNSH. He alleged that the appointment of Dr Cha was nepotistic and that RNSH was prioritising issues of funding at the expense of patient safety and well-being. He further noted that in December 2017 RNSH had failed to diagnose that the crystals in his inner ear had dislodged which had caused him to experience vertigo. He confirmed that he requested a review of the Primary Decision.
16. On 10 November 2022, the Commission responded to Mr Mohareb and acknowledged his request for a review of the Primary Decision.
17. On 28 November 2022, the Commission wrote to Mr Mohareb with respect to his request for a review of the decisions made about his complaint against RNSH ('the Review Decision'). The Commission informed Mr Mohareb that his complaint against RNSH was being considered in formal proceedings already underway by the NSW Health Liability Panel, and confirmed that its initial assessment to discontinue the complaint pursuant to s 27(1)(c) had been appropriate on the basis that the matter was already under investigation by some other competent person or body or was the subject of legal proceedings. It confirmed that there was no basis for further action being taken by the Commission. The Commission also noted that Mr Mohareb's review request raised new issues about his care at RNSH (the dislodgment of crystals in his ear and vertigo) and that it could examine these issues if he provided further details in a new complaint.
18. On 28 November 2022, Mr Mohareb emailed the Commission inquiring whether there was a proposal to assist him with a remedial operation, asking for details of the NSW Health Liability Panel and denying that he had provided information that might constitute a new complaint.
19. On 9 December 2022 Mr Mohareb filed the Summons initiating these proceedings.

The defendant's application

1. Rule 13.4 of the UCPR provides:- 13.4 Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).
2. During the course of the proceedings, the relief sought by the Commission was narrowed to summary dismissal pursuant to r 13.4(1)(b). Such an order involves the summary dismissal of proceedings at an early interlocutory stage. It is trite to say that the power should be exercised sparingly and only where the proceedings are manifestly groundless, or so clearly deficient that it would be inappropriate to allow the proceedings to continue or that no reasonable cause of action is disclosed: General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 at 129 - 130 ('General Steel'). Cases dealing with summary dismissal emphasise the exceptional nature of the power and the correspondingly restricted circumstances in which its exercise is appropriate: Co-ownership Land Development Pty Ltd v Queensland Estates Pty Ltd (1973) 47 ALJR 519; 1 ALR 201. In other words, the Commission must overcome a high bar if it wishes to succeed in its application. Summary dismissal ought to be refused if proceedings require determination of disputed questions of fact or where a claim involves a material dispute on a question of law: General Steel at 130.

Evidence

1. The Court Book was admitted into evidence as Exhibit 1. It contains:- 1. An affidavit of Nader Mohareb dated 6 July 2023 with annexures; 2. The Summons for Judicial Review of Administrative Decision filed 9 December 2022; 3. An affidavit of Nader Mohareb dated 8 December 2022 with annexures; 4. The Commission's Notice of Motion filed 16 February 2023; 5. The Commission's written submissions and chronology filed 14 March 2023; 6. An affidavit of Nader Mohareb dated 24 May 2023 with annexures; and 7. Mr Mohareb's written submission filed 8 June 2023.
2. Exhibit 2 contains two USB drives that have video files taken by Mr Mohareb of consultations with Dr Jeon Cha on 28 September 2018, with Dr Nigel Curtis on 15 March 2021 and with Dr Rowan Gillies on 2 December 2022 and 24 February 2023. Mr Mohareb transcribed the conversations during these consultations and those transcripts were annexed to his affidavit of 24 May 2023. They were admitted only for the purpose of confirming the content of the video files.
3. Exhibit 3 is the judgment of Mohareb v State of New South Wales & Ors [2021] NSWDC 177 before Abadee DCJ and a Notice of Motion filed in the District Court of NSW by Mr Mohareb on 19 April 2021.

The plaintiff's affidavit evidence

1. The affidavit of Mr Mohareb dated 6 July 2023 concerns his assertion that he did not consent to the filing of a tender bundle by the Commission and contains evidence of communications between him and Mr Shah, solicitor for the HCCC. Mr Mohareb objected to the Commission's tender bundle at the hearing. As it duplicated documents already admitted as part of Exhibit 1, it was not admitted into evidence.
2. The affidavit of Mr Mohareb dated 8 December 2022 annexes a number of documents that constitute relevant communications between him and other persons, as well as his complaint of 30 July 2022 to the Commission and the reports from several maxillofacial surgeons and one maxillofacial surgical registrar offering opinions on Mr Mohareb's care. Other annexures include all Mr Mohareb's correspondence with the Commission (which has been set out above).
3. The affidavit of Mr Mohareb dated 24 May 2023 recounts the factual background to these proceedings. Given that Mr Mohareb is seeking judicial review of an administrative decision, the relevance of the facts contained therein are limited. Whatever merit there may be to Mr Mohareb's allegations of negligence against Dr Cha and RNSH, they are irrelevant to my decision with respect to the Summons. Nevertheless, the affidavit was admitted without objection. Annexed to it are a number of documents including medical records and the aforementioned transcripts of the recordings made by Mr Mohareb.

Defendant's submissions

1. Ms Case helpfully distilled the relief sought by Mr Mohareb in the Summons, being:- 1. Orders in the nature of certiorari (Prayer 2); 2. A declaration that RNSH Decision and/or the Review Decision involved an error of law on the face of the record (Prayer 3(a)); 3. That the relevant decision involved denying the plaintiff procedural fairness (Prayer 3(b)); 4. That the relevant decision is based on findings/assertions which are incapable of being supported by evidence (Prayer 3(c)); and 5. Orders in the nature of mandamus (Prayer 4).
2. In his Summons, Mr Mohareb also seeks:- 1. An order for the production of the defendant's record (Prayer 1); and 2. That the Commission's decision be set aside by way of statutory appeal.
3. With respect to Prayer 1, the Commission submitted that in this jurisdiction, the record only comprises the relevant decision and its reasons, which Mr Mohareb already possesses (and which are annexed to his affidavit of 9 December 2022): see Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 at [16] - [19], citing Craig v State of South Australia [1995] HCA 58; 184 CLR 163 at 181. With respect to the statutory appeal, the Commission submits that there is no appeal by way of statute to be found anywhere in any Act. These submissions are clearly correct.
4. The Commission submits that the Summons should be dismissed or set aside on the basis that:- 1. The Court does not have jurisdiction to hear or determine the matter; or 2. The Summons discloses no reasonable cause of action.
5. Ms Case submitted at the hearing that underlying these two grounds is the fundamental issue that Mr Mohareb does not have any right or interest in the proceedings that he has initiated. The Commission relied on the decision of Rothman J in Hastwell v Health Care Complaints Commissioner (NSW) [2020] NSWSC 728 ('Hastwell') and the subsequent decision of the NSW Court of Appeal in Hastwell v Health Care Complaints Commission [2021] NSWCA 22 ('Hastwell CA').
6. Ms Case submitted that, following Hastwell CA, neither the Primary Decision, nor the Review Decision, are reviewable on the basis of procedural fairness because neither decision had any effect on Mr Mohareb's rights under the Act. Further, she submitted that any limited rights that Mr Mohareb had under the Act (being an acknowledgement of his complaint in a particular form, the notice of a decision following the completion of an assessment of the complaint and the right to request a review of a decision) have all been discharged. I observe that there is no dispute that these requirements have been discharged.
7. With respect to declaratory relief sought in Prayer 3, the Commission submitted that the ordinary rule is that no declaration of right will be made where certiorari and mandamus do not lie: Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41 at [101]. Given Mr Mohareb's limited rights under the Act, the Commission submitted that there is no reason for the Court to depart from the ordinary rule in these proceedings.
8. With respect to Prayer 3(b), the Commission denied that it owed Mr Mohareb a duty of procedural fairness with respect to either the Primary Decision or the Review Decision. Ms Case submitted that the Commission's only function was to assess the complaint within 60 days and then advise Mr Mohareb of its decision. It complied with these requirements.
9. Finally, in answer to Prayer 3(c), the Commission submitted that pursuant to s 27 of the Act, the reasons by which it may discontinue dealing with a complaint are neither limiting, nor binding. In any event, the Commission submitted that there was no error in it relying on s 27(1)(c) as the ground on which to discontinue Mr Mohareb's claim. His complaint was under investigation by a competent body (the NSW Health Liability Panel) and the term 'legal proceedings' in that section is wide enough to encompass anticipated or threatened legal proceedings.

Plaintiff's submissions

1. In his written and oral submissions, Mr Mohareb submitted that as a complainant, he had an interest in his complaint being dealt with properly. He submitted that this must be the case because the Commission has powers that could have assisted him in resolving his complaint by, for example, ordering conciliation under s 24 of the Act. He submitted that Hastwell and Hastwell CA could be distinguished on the facts and because the plaintiff in those proceedings relied on different grounds of review.
2. Mr Mohareb further submitted that the Commission is required to give adequate reasons for why it discontinued his complaint. He relied on ss 20(2)(b) and 28(8)(b) of the Act. He submitted that the Commission's failure to give adequate reasons was a denial of procedural fairness.
3. With respect to s 27(1)(c), Mr Mohareb submitted that it was an error of law for the Commission to discontinue dealing with his complaint under this section because it does not encompass 'unlitigated' or anticipated legal proceedings and because RNSH could not be considered a competent body to investigate itself. Further, he submitted that his complaint raised a significant issue of public health and safety which required the Commission to investigate: ss 23(1)(b)(i), (ii); 27(3) of the Act. Mr Mohareb's submission that there was no evidence on which the Commission based its decision to discontinue dealing with his complaint appears to be related to his submissions with respect to s 27 of the Act.
4. Mr Mohareb contended that there are three errors on the face of the record made by the Commission. First, it dealt with his one complaint as if it were two. Second, the Commission told him to make a new complaint rather than investigating the "associated complaints" set out in his email of 4 November 2022. Third, Mr Mohareb submitted that the NSW Health Liability Panel does not exist and that the Commission ought to have provided evidence of its existence and that it has similar powers to the Commission or a Court.
5. I observe that Mr Mohareb submitted in writing that the Commission's assessment of his complaint "was not done in good faith but with the premeditated intention to reach the predetermined conclusion to assess my complaint "for no further action"". He submitted that the Commission's response was a "deliberate falsification of the facts, the purpose of which was to divert my complaint from being against the RNSH to being against one particular doctor", and that the Commission "did not give proper / adequate / satisfactory/ valid / lawful reasons for its decision to "discontinue" his complain which amounted to a denial of procedural fairness

The Legislative Scheme

1. The legislative scheme was considered in both Hastwell decisions. The primary object of the Act is set out in section 3 of the Act, which is as follows:- 3 Object and principle of administration of Act (1) The primary object of this Act is to establish the Health Care Complaints Commission as an independent body for the purposes of - (a) receiving and assessing complaints under this Act relating to health services and health service providers in New South Wales, and (b) investigating and assessing whether any such complaint is serious and if so, whether it should be prosecuted, and (c) prosecuting serious complaints, and (d) resolving or overseeing the resolution of complaints. (2) In the exercise of functions under this Act the protection of the health and safety of the public must be the paramount consideration.
2. The Commission manages these complaints in conjunction with professional councils, such as the Medical Council: s 3A of the Act.
3. The Commission's functions are outlined in s 80(1) of the Act and relevantly include receiving and dealing with complaints relating to health practitioners and health organisations, assessing them and, in appropriate cases, investigating them. Section 80(1) provides:- 80 Functions of Commission (1) The Commission has the following functions - (a) to receive and deal under this Act with the following complaints - • complaints relating to the professional conduct of health practitioners • complaints relating to a relevant health organisation, including an alleged breach by a relevant health organisation of a code of conduct prescribed by the regulations made under section 100(1)(c) of the Public Health Act 2010 • complaints concerning a health service that affects, or is likely to affect, the clinical management or care of individual clients • complaints referred to it by a professional council under the Health Practitioner Regulation National Law (NSW), (b) to assess those complaints and, in appropriate cases, to investigate them, refer them for conciliation or deal with them under Division 9 of Part 2, (c) to make complaints concerning the professional conduct of health practitioners and to prosecute those complaints before the appropriate bodies, including professional councils, professional standards committees and tribunals, (d) to report on any action the Commission considers ought to be taken following the investigation of a complaint if the complaint is found to be justified in whole or part, (e) to monitor, identify and advise the Minister on trends in complaints, (f) to publish and distribute information concerning the means available for the making of complaints and the way in which complaints may be made and dealt with, (g) to provide information to health service providers and professional and educational bodies concerning complaints, including trends in complaints, (h) to consult with groups with an interest in the provision of health services, including professional associations, health service provider groups, relevant community organisations and private and institutional health care providers, on the complaints process and the dissemination of information concerning the complaints process, (i) to develop, after such consultation with clients, health service providers and persons who, in the Commission's opinion, have an appropriate interest, a code of practice to provide guidance on the way in which the Commission intends to carry out some or all of its functions. (j) (Repealed) …
4. The Director of Proceedings has the responsibility for determining whether or not a complaint should be prosecuted before a disciplinary body: ss 90A, 90B of the Act.
5. Part 2 of the Act concerns complaints. Pursuant to s 20(1) of the Act, the Commission is to assess any complaints for the purpose of deciding whether it ought to be investigated. An assessment is a preliminary step to any investigation. However, s 20(2) of the Act leaves it open to the Commission to decline to entertain a complaint at all, in which case a complaint would not even reach the preliminary assessment stage. If the Commission does entertain a complaint, then the Act places certain requirements on it with respect to its assessment. Pursuant to s 20(2) of the Act, it is to identify the specific allegations and confirm any relevant information with the complainant. Section 20 provides:- 20 The purpose of assessment (1) The assessment of a complaint is for the purpose of deciding whether - • the complaint should be investigated • the complaint should be conciliated or dealt with under Division 9 • the complaint should be referred to the Health Secretary in accordance with section 25 or 25A • the complaint should be referred to another person or body in accordance with section 25B or 26 • the Commission should decline to entertain the complaint. (2) Unless the Commission decides to decline to entertain a complaint, the Commission is, as part of its assessment of the complaint and as soon as practicable after commencing its assessment - (a) to identify the specific allegations comprising the complaint and the person or persons whose conduct appears to be the subject of the complaint, and (b) to use its best endeavours to confirm with the complainant and with any other person who provided relevant information in relation to the complaint that the matters so identified accord with the information provided by them.
6. Pursuant to s 22 of the Act, any assessment must occur within 60 days of receipt. Further, pursuant to s 28 of the Act, the Commission must give notice of its decision to the parties to the complaint, including the reasons for its decision.
7. Section 23(1) of the Act provides that the Commission must investigate a complaint if the appropriate professional council is of the opinion it should be investigated, or if it appears to the Commission that the complaint raises a significant issue of public health or safety, or a significant question as to the appropriate care or treatment of a client by a health service provider or, if the complaint is substantiated, would provide grounds for disciplinary action against a health practitioner or relevant health organisation, or would involve gross negligence on the part of a health practitioner or would result in the health practitioner or relevant health organisation being found guilty of an offence under Div 1 or 3 or Pt 7 of the Public Health Act 2010.
8. Significantly, the Commission is only required to investigate a complaint if a professional council is of the opinion that it should be investigated or if the Commission is satisfied that one of the requirements in s 23(1)(b) applies.
9. Pursuant to s 27 of the Act, the Commission may discontinue a complaint for a number of reasons that are neither exhaustive, nor binding on the Commission. Section 27 provides:- 27 Circumstances in which Commission may discontinue dealing with complaint (1) Following the assessment, the Commission may discontinue dealing with a complaint (or any part of a complaint) for any one or more of the following reasons - (a) the complaint (or part) is frivolous, vexatious or not made in good faith, (b) the subject-matter of the complaint (or part) is trivial or does not warrant investigation or conciliation or the Commission dealing with it under Division 9, (c) the subject-matter of the complaint (or part) has been or is under investigation by some other competent person or body or has been or is the subject of legal proceedings, (d) the complaint (or part) has been referred by the Commission to another person or body for investigation or for consideration of other action (including, for example, performance assessment or impairment assessment under the Health Practitioner Regulation National Law (NSW)), (e) there is or was, in relation to the matter complained of, a satisfactory alternative means of dealing with the matter by the complainant and the complainant does not have a sufficient reason for not pursuing that alternative means, (f) the complaint (or part) relates to a matter which occurred more than 5 years before the complaint was made and the complainant does not have a sufficient reason for having delayed the making of the complaint, (g) the complainant has failed, without sufficient reason, to provide further particulars of the complaint (or part) within the time specified by the Commission, (h) the complaint (or part) concerns a matter that falls within the responsibility of the Commonwealth. (2) This section does not exhaust the circumstances in which the Commission may discontinue dealing with a complaint (or part). (3) The Commission must not discontinue dealing with a complaint (or part) under this section if it appears to the Commission that the complaint (or part) raises a significant issue of public health or safety. (4) If the Commission discontinues dealing with a complaint (or part) under this section, the complaint (or part) is terminated.
10. Thus the Commission has a broad discretion in dealing with any complaint it receives. It may refuse to entertain it at all, or it may assess it and decide to discontinue dealing with it, or it may choose to investigate it. There are circumstances, prescribed by the Act, where it must investigate a complaint, but those circumstances depend on the opinion of a professional council or the opinion of the Commission itself. The reasons for which it may choose to discontinue dealing with a complaint are not limited by the Act.

Consideration

1. Insofar as any decision of the Commission affects Mr Mohareb's rights, it is the Review Decision that is the operative decision in determining his complaints: Hastwell CA at [60]. It is therefore the Review Decision that might be amenable to judicial review.

Statutory appeal

1. The Summons seeks, by way of statutory appeal, that the Commission's decision be set aside, the basis for which was not identified. Mr Mohareb accepted that when he drafted the Summons, he was following another document. I make no criticism of Mr Mohareb, as he is an unrepresented litigant. However, I am unable to discern any statutory basis for Mr Mohareb's claim, and that part of the Summons discloses no reasonable cause of action.

Inherent jurisdiction to grant remedies for jurisdictional error

1. Aside from any power given to it by statute, the Court has inherent jurisdiction to make grants of certain remedies that were available to it historically. This jurisdiction is now reflected in s 23 of the Supreme Court Act 1970 ('the SCA'). Those remedies are found in Part 5 Division 1 of the SCA. Mr Mohareb seeks certiorari and mandamus, both of which are found in s 69 of the SCA, and declaratory relief, which is found in s 75 of the SCA.
2. Mandamus and certiorari are available for jurisdictional errors of law. Certiorari is also available for an error of law on the face of the record: s 69(3) SCA. Hayne J discussed the meaning of jurisdictional error in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 141; [2000] HCA 57 at [163] ('Aala'). His Honour noted that it may be difficult to draw any distinction between a jurisdictional error and a non-jurisdictional error of law, but the distinction remains relevant in Australian law. Hayne J elaborated at 141:- "There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not."
3. The Commission might have made a jurisdictional error if, for example, it had failed to comply with some statutory requirement or precondition in exercising its power. A jurisdictional error may also occur where there has been a failure to accord procedural fairness to a complainant but only if such a duty of procedural fairness is owed in the circumstances: Aala at 101.
4. In Hastwell CA at [11], Basten JA said the following with respect to whether or not a complainant is owed any duty of procedural fairness under the Act:- "[11] Although it was conceded by the Commission that it owed a duty of procedural fairness to the complainant, the basis of that duty was not identified. Generally speaking, such a duty is owed in circumstances where a body may exercise power adversely to the rights or interests of another person. The conferral of such a power will usually entail an obligation (express or implied) to allow the person an opportunity to be heard against the exercise of the power, and to be notified of material which might support such an adverse exercise of the power. However, that is not always the case: police are not required to provide procedural fairness before arresting a person or obtaining a search warrant with respect to another person's premises. Furthermore, the complainant is not the object of the exercise of the functions imposed on the Commission: it is the practitioner the subject of the complainant who is the object of possible sanctions and who will usually be entitled to procedural fairness during the complaint-handling process."
5. Basten JA then pointed out that whether or not such a duty is owed is a question of statutory construction and remarked that "[i]t is by no means clear that such an obligation is owed to a complainant in relation to the handling of a complaint against a medical practitioner by the Commission.": Hastwell CA at [12]. Similar doubts were expressed by Rothman J in Hastwell at [69]. No basis for such a duty was identified in Hastwell CA, and neither has it been in these proceedings. In any event, here the Commission gave adequate reasons for its decision to discontinue the complaint.
6. Related to this is a more fundamental issue that affects these proceedings, which is whether or not the Commission's decision to investigate a complaint is reviewable by a Court at all. In Hastwell CA, Basten JA (with whom Leeming and White JJA agreed) held that a decision of the Commission with respect to whether or not a complaint should be investigated is not amenable to judicial review.
7. His Honour observed that it is not the case that, under the Act, a complainant is able to prosecute disciplinary proceedings against a health practitioner or health service: Hastwell CA at [7]. This is the Commission's function, in concert with the relevant professional council. Therefore, a complainant whose complaint is discontinued is not denied any right to further pursue the matter, as that right does not exist: Hastwell CA at [8].
8. His Honour said that, given the function of the Commission and its broad powers of discontinuance, it may be compared to other investigative bodies such as the police or the public prosecutor, whose decisions are not subject to the supervisory jurisdiction of the courts: Hastwell CA at [14]. After considering the principles relating to public prosecutions, Basten JA continued at [18] - [19]:- "[18] These considerations engage the principled limitation as to the scope of the supervisory jurisdiction, when invoked to quash a decision. The principle is explained in Hot Holdings Pty Ltd v Creasy in the following terms: "The proposition that certiorari will lie only in respect of a decision which determines questions affecting rights has led to a number of cases, of which the present is one, where the contention has been that the decision in issue is merely advisory, provides a recommendation, or is made at a preliminary stage of a decision-making process. Consideration of the requirement for certiorari that the impugned decision determines questions affecting rights, on occasion has been confused with a distinct body of principle. This concerns the existence of a requirement of procedural fairness. The conceptual distinction is neatly illustrated by the decision of this Court in Ainsworth v Criminal Justice Commission. In that case it was held that there had been a failure to observe the requirements of procedural fairness but, nevertheless, certiorari did not lie because no legal effect or consequence attached to the report in question." [19] If the Health Care Complaints Act conferred any legally enforceable rights on a complainant, they were limited to receiving an acknowledgement that a "complaint" complying with the Act had been lodged, and notification of steps taken to deal with it. The Commission accepted the complaint and gave the applicant notice, in accordance with s 28(1) of the Health Care Complaints Act, of its decision to discontinue dealing with the complaint. It gave reasons for the decision pursuant to s 28(8)(b). There is no suggestion otherwise. Applying Hot Holdings in the context of the statutory scheme, the decision to discontinue dealing with the complaint was not reviewable on the grounds relied on by the applicant."
9. Basten JA's analysis binding on me. In any event, after my own independent assessment of the Act, I entirely agree with his Honour. In my view, the Commission does not owe any duty of procedural fairness to a complainant under the Act, and if it did, any such duty would be limited strictly to the matters outlined by Basten JA in Hastwell CA at [19]. The Commission has in any event complied with these requirements in Mr Mohareb's case. I find that the Court has no jurisdiction to grant the remedies sought by Mr Mohareb, as the Commission's decision is not amenable to judicial review.
10. This disposes of the proceedings. However, I propose to briefly deal with the balance of Mr Mohareb's submissions, particularly as they were addressed by the Commission.

The "no evidence" ground

1. Mr Mohareb submitted that the Commission had no evidence upon which to discontinue dealing with his complaint. I understand this submission to go to the Commission's reliance on s 27(1)(c) of the Act in discontinuing Mr Mohareb's complaint. That section has been set out above.
2. Mr Mohareb submitted that RNSH is not a competent body to investigate itself and that at the time that he made his complaint, the subject matter of that complaint was not the subject of legal proceedings.
3. First, the evidence does not support Mr Mohareb's contention that RNSH was investigating itself. In the Primary Decision, the Commission informed Mr Mohareb that the circumstances that gave rise to his complaint were being investigated and managed by NSLHD. NSLHD is a body corporate constituted by s 17 of the Health Services Act 1997. RNSH, along with other hospitals, are within the local government area of NSLHD. The RNSH is not the NSLHD. I observe that in any event the Review Decision indicated that the matter was being investigated by the NSW Health Liability Panel, not RNSH or NSLHD.
4. Second, there is nothing unusual or improper about a health service or organisation conducting an internal investigation of a complaint about its staff or its processes. For example, a health service organisation may conduct a 'serious adverse event review' pursuant to Pt 2A Div 3 of the Health Administration Act 1982 ('the HAA'). This involves a preliminary risk assessment of an incident, after which one or more persons are appointed to carry out the review: see s 21G(1) of the HAA. That a health service organisation might conduct a review into an allegation of misadventure is entirely unremarkable.
5. Third, I accept Ms Case's submission that the term 'legal proceedings' is wide enough to encompass anticipated legal proceedings, or alternatively, that the Commission could discontinue Mr Mohareb's complaint for that reason pursuant to s 27(2). In my opinion, there is no reason to read down s 27(1)(c) in the way that Mr Mohareb suggests, particularly when it is read with sub-s (2).
6. At the hearing, Mr Mohareb denied that he ever wrote to RNSH for the purpose of informing them that he was considering making a claim in negligence against them. Rather, Mr Mohareb said that his overriding purpose in writing to RNSH was to get proper treatment. He submitted that he was not writing as a lawyer and that his letter ought not to be interpreted as if he was using the language of a lawyer. I reject this submission. The subject line of Mr Mohareb's email and its contents, as set out above, refer to a potential negligence claim. Mr Mohareb attached reports from several doctors, including the medicolegal report prepared by Dr Curtis that was clearly prepared in anticipation of legal proceedings. Dr Curtis referred to Mr Mohareb's treatment as sub-standard and several passages of his report mirror the language of the Civil Liability Act 2002. So much is confirmed in the video file of Mr Mohareb's consultation with Dr Curtis, where they discuss medical negligence proceedings. Further, in the conclusion of his email of 30 July 2022, Mr Mohareb says that if he does not receive a response with an acceptable resolution, he will be left with no other option than to commence legal proceedings against RNSH and NSLHD. In those circumstances, in my opinion, it was entirely reasonable for RNSH to treat the complaint as an 'unlitigated' legal claim.

Certiorari for error on the face of the record

1. Mr Mohareb submitted that there were three errors on the face of the record. As pointed out by Rothman J in Hastwell at [22], certiorari applies to courts and tribunals the Commission is neither. In any event, I do not find that the Commission made any error of law.
2. First, Mr Mohareb suggests that it was an error for the Commission to treat his initial complaint as two separate complaints. I accept that Mr Mohareb may have intended for his complaint to primarily be about the care he received at RNSH generally. However, his letter contains a clear allegation that the operation by Dr Cha was conducted negligently. It was not unreasonable for the Commission to deal with his complaint as if it were two separate complaints against RNSH and Dr Cha. I observe that he made no complaint about there being two complaints in his early correspondence with the Commission.
3. Second, Mr Mohareb states that it was an error for the Commission to not investigate his 'associated complaint' about his care at RNSH, including that he was discharged whilst suffering from severe vertigo. He relies on s 22A of the Act, which requires the Commission to have regard to any associated complaint to the extent that the Commission considers it relevant to the complaint. Mr Mohareb did not outline his alleged 'associated complaint' until his email of 4 November 2022 by which time the Primary Decision had already been made. The Commission asked him to provide further details in a new complaint. Mr Mohareb chose not to do so. I reject this submission.
4. Third, Mr Mohareb submitted that the NSW Health Liability Panel does not exist, and that the Commission must show that it has the same powers as the Commission or a Court. That the Commission stated that the matter was under investigation by the NSW Health Liability Panel is prima facie evidence of its existence. Against this is Mr Mohareb's assertion that it does not exist. There is no obligation on the Commission to disprove Mr Mohareb's assertion. Further, there is nothing in the Act that requires the Commission to demonstrate that the investigating body pursuant to s 27(1)(c) has the same powers of the Commission or a Court. I reject this submission.

Declaratory relief

1. The Commission's decision is not amenable to judicial review for reasons already stated. I also agree with Ms Case's submission that there is no reason to depart from the ordinary rule that a declaration is not available where certiorari or mandamus do not lie. This is such a case.

Disposition

1. It follows that in my opinion, the Summons discloses no reasonable cause of action and should be dismissed.

Orders

1. I make the following orders:- 1. Pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW), the Summons is dismissed. 2. The plaintiff is to pay the defendant's costs.

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: 16 October 2023