NG v Chinese Medicine Board of Australia

NCAT Occupational|2017-03-02

Introduction

Ms Wun Fan Ng (Ms Ng) is a registered Chinese Medicine Practitioner. Three conditions were placed on her registration on 1 October 2016 as a result of a decision of the Chinese Medical Board (the Board).
Under the provisions of the Health Practitioner Regulation National Law (the National Law) Ms Ng challenged the Board's decision. She lodged an appeal under s 175 of the National Law in the Tribunal on 2 December 2016. On 9 December 2016 she lodged an application for a stay of the Board's decision pending the hearing of her appeal. She also made submissions to the Board under s 81(2) of National Law.
On 19 December 2016 Australian Health Practitioner Regulation Agency (AHPRA), the agency that maintains the public register of health professionals under the National Law, advised Ms Ng that the Board had met on 19 December 2016 and had removed all conditions on her registration.
Ms Ng's stay application was listed before the Tribunal on 21 December 2016. Because the conditions had by that time been removed from the register, the stay application was withdrawn. However, the Tribunal noted that Ms Ng "reserved her right to apply for costs at an appropriate time". The appeal was listed in the Health Practitioner list for directions on 24 February 2017.
On 24 February 2017 Ms Ng submitted that I should set her appeal down for hearing before a full panel of the Tribunal. That course was opposed by Ms Rae on behalf of the NSW Crown Solicitor who appears for AHPRA (the Board's representative in these proceedings). Ms Rae made an oral application that the appeal be dismissed under s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act). Ms Rae explained that AHPRA conceded the Board should pay Ms Ng's costs to date because the decision to impose conditions on her registration was based on a factual error.
The parties agreed the competing applications could be determined "on the papers" and I made a time-table for filing written submissions by the NSW Crown Solicitor by 3 March 2016 and on behalf of Ms Ng by 10 March 2017. Although Ms Ng was legally represented before me on 24 February 2017 she personally filed submissions in the Tribunal on 2 March 2017. Submissions were received from the NSW Crown Solicitor on 3 March 2017. Submissions were received from Ms Ng's solicitor on 10 March 2017. Ms Ng's solicitor's submissions make it clear she opposes the summary dismissal application.

Background

To aid understanding of the issues in dispute in this matter, it is necessary that I set out details of some of the correspondence between the parties and the material filed by Ms Ng.
In 2003 Ms Ng was registered as a Chinese Medicine Practitioner in Hong Kong. She remains registered in that jurisdiction. She states she has practised in the profession in Australia since 2006.
In 2012, following the introduction of the National Registration and Accreditation scheme, Ms Ng states that she applied for and was granted registration as a Chinese Medicine Practitioner "in both divisions of Chinese herbal medicine and Acupuncture".
In 2015 Ms Ng submitted an additional application to the Board for registration in the division of Chinese Herbal Dispensing.
Ms Ng states between June 2015 and August 2016, in accordance with requirements of the Board, she supplied de-identified patient records containing details of prescriptions and dispensing by her in the previous two year period.
On 3 August 2016 the Board approved Ms Ng's registration in the division of Chinese Herbal Dispensing but proposed imposing conditions on her registration. The conditions were to be imposed on the basis that Ms Ng had prescribed a restricted herb or herbs. Ms Ng made submissions to the Board denying inappropriate prescribing. However, on 8 November 2016, AHPRA wrote to Ms Ng advising the Board granted her registration in the Division of Chinese Herbal Dispensing but imposed three conditions on her registration from 1 October 2016 as follows: 1. Ms Wun Fan Ng shall not purchase, possess, prescribe or dispense substances or product(s) containing substances restricted via the Therapeutic Goods Act 1989 (Cmth) or any other relevant national, state or territory poison list, schedule or similar. 2. Ms Wun Fan Ng shall undertake a suitable training course, pre-approved by the Chinese Medicine Board of Australia with respect to restricted herbs and provide evidence of successful completion of the course undertaken by 30 June 2017, under section 83(1) of the National Law. 3. Any costs associated with any period of supervision or clinical competency assessment is to be the responsibility of Ms Wun Fan Ng.
The stated reason for the Board's decisions to impose the three conditions was: The Committee considered your submission but noted the use of restricted herbs in the patient records you previously provided, specifically the use of the restricted herb Muxiang in patient records provided for the period between 2011 and 2012. Therefore the Committee determined it appropriate to impose restricted herb conditions on your registration.
In her grounds of appeal Ms Ng states that the herb Muxiang (which she spells as Muxing in her Notice of Appeal) is not a restricted herb, that the Board was in error and its decision was unreasonable.
On 15 November 2016 Ms Ng wrote to AHPRA and strenuously denied that she had used a restricted herb in particular Qing Mu Xiang. She stated that the Committee had "mixed up Qing Mu Xiang with Mu Xiang or Chuan Mu Xiang". She also noted: In July 2016, the Chinese Medicine Board has published the Nomenclature compendium of commonly used Chinese herbal medicines. In the schedule Mu Xiang (Aucklandiae) is classified under CITES whereas Chuan Mu Xiang (Vladimiriae) is neither under CITES nor SUSMP. Amazingly, on the contrary to the listing in 2012, Qing Mu Xiang, such a high poisonous substance, is not included in the schedule under SUSMP. This creates confusion for Chinese medicine practitioners to safely practise the Chinese herbal medicine.
On 19 December 2016 AHPRA wrote to Ms Ng incorrectly noting a review had been conducted at Ms Ng's request under s 125 of the National Law at its meeting held that day. The letter informed Ms Ng the Board had conducted a review and removed the conditions on her registration. The stated reason for removal of the conditions was noted as: 1.On review you have provided satisfactory evidence to the Committee demonstrating a material change in your practice. You have not used restricted herbs whilst practising in Australia and have demonstrated that you have the required knowledge and experience to practise safely and competently in the profession. 2.Accordingly the Committee deemed it appropriate to remove the above condition(s) from your registration.
On 21 February 2017 AHPRA wrote to Ms Ng following a meeting of a committee of the Board held on 2 February 2017. It stated the Board it had reviewed its decision from 1 October 2016 to impose conditions. The letter noted the following: The Committee considers that the decision to impose conditions on your registration in the division of Chinese Herbal Dispensing under section 83(1) of the Health Practitioner Regulation National Law was affected by jurisdictional error and is therefore void and of no legal effect. This means that your registration in the division of Chinese Herbal Dispensing, effective 1 October 2016, was never subject to the conditions.
Under the heading "Reasons for Decision" the letter explained: The Committee's decision to impose the restricted herb condition was based on an error of fact. Based on patient notes provided by you, the Committee had determined that you had used a restricted herb, being "Muxiang" in your practice. The Committee acknowledges that this was an error and that Muxiang is not a restricted herb. As Muxiang is not a restricted herb, it was not necessary or desirable for the Committee to impose the restricted herb conditions on your registration under section 83(1) of the National Law.
In submissions filed on behalf of the NSW Crown Solicitor it is noted that on 19 December 2016 the Board purported to remove the conditions on Ms Ng's registration under s 125 of the National Law. The submissions note that "the Respondent now accepts that it did not have power to remove the conditions pursuant to s 125 of the National law". The submissions further note that no conditions are recorded on the register. At [15] the submissions note: The Respondent considers that the Appellant's registration as a Chinese Medicine Practitioner has never been subject to conditions.

The relevant provisions of the National Law and the CAT Act.

Section 175 (1) (c) of the National Law provides a person who is subject of a decision of a National Board to impose conditions on the person's registration may appeal that decision to the Tribunal.
Section 175 (3) provides as follows: The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the National Board, may be given.
The Tribunal's powers on determining an appeal are found in s 175C as follows: 175C Decision (1) After hearing the matter, the responsible tribunal may-- (a) confirm the appellable decision; or (b) amend the appellable decision; or (c) substitute another decision for the appellable decision. (2) In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision.
Section 175B empowers the Tribunal to make any order for costs it considers appropriate for the proceedings.
Ms Rae, on behalf of the NSW Crown Solicitor, seeks an order dismissing the appeal under s 55 (1) (b) of the CAT Act. Section 55 (1) (b) provides: (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: (a) … (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,
An application under s 55 (1) (a summary dismissal of proceedings) is defined in s 4 of the CAT Act as an interlocutory decision. Section 55 (1) is contained in Part 4 of the CAT Act which part deals with Practice and Procedure. Each of the provisions of Part 4 is subject to enabling legislation and procedural rules. In this case the enabling legislation is the National Law.
Section 165B of the National Law deals with the constitution of the Tribunal. For the hearing of an appeal, the Tribunal must be constituted by an Australian lawyer of at least 7 years' standing, 2 health practitioners selected by the Council for appointment to the Tribunal as occasional members and one lay person.
However, when the Tribunal is constituted to make an ancillary decision or an interlocutory decision (as defined in the CAT Act) the Tribunal is to be constituted by the List Manager or an Australian Lawyer of at least 7 years' standing. Thus, Ms Rae submits, and I agree, that I have power to hear an application under s 55 (1) (b) in my role as the List Manager. In so finding I do not accept the submissions made on behalf of Ms Ng of a lack of power under the CAT Act to determine this application. In reaching this conclusion I have regard to the wording of s 165B (5A) of the National Law. That section provides: (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).

Ms Ng's submissions

Ms Ng's written submissions and her oral submissions made by leave at the directions hearing, left me in no doubt that she is upset and aggrieved at the Board's action in purporting to impose conditions on her registration, and the fact that the conditions appeared on the public register from 1 October 2016 to 19 December 2016. She is also understandably aggrieved that the letter sent by AHPRA on 19 December 2016 did not acknowledge that a factual error had been made, nor I note did the letter offer an apology to her. From the material before me it appears that the error was not acknowledged until the letter to her from AHPRA dated 21 February 2017.
Ms Ng expresses distress and concern that her reputation as a Chinese Medicine Practitioner has been sullied.
Ms Ng notes incorrectly at [1] of her submissions that I explained to the Crown Solicitor at the directions hearing that s 165 (5A) of the National Law was irrelevant. However, she goes on to submit that the proceedings are not frivolous or vexatious. She also asserts the appeal is not misconceived or lacking in substance. Ms Ng then catalogues a series of allegations against the Board and states this was "by fabricating untrue evidence of my material change in practice". I understand by this submission, Ms Ng is referring to the patently incorrect reason given by the Board (Ms Ng's change of practice) for removing the conditions in its letter to her of 19 December 2016, rather than the candid acknowledgment of its error found in its letter of 21 February 2017.
Ms Ng also submits: The Chinese Medicine Board consider their decision was affected by jurisdictional error. In fact they have acted not in accordance with the Australian Law. An error within a jurisdiction does not cause a decision or proceedings to be void or a nullity.
Ms Ng also submits: The Chinese Medicine Board proposed to dismiss my appeal at the Directions hearing based on untrue reasons and misled the Tribunal. The Tribunal need [sic] to check the validity and truthfulness of their letters before making a decision.
Ms Ng asserts she will be denied procedural fairness if her appeal is not heard, and that the Board's decision was unreasonable.
In his written submissions at [26] Ms Ng's solicitor states: Where the Appellant has jurisdiction to bring an appeal, the Tribunal does not have power to summarily dismiss it. Were the Tribunal to entertain an application for dismissal under section 55 (1)(b) it should only do so where there is a lack of jurisdiction.
The solicitor's written submissions set out a number of authorities, including those referred to in the submissions of the NSW Crown Solicitor. I will return to the authorities later in these reasons.

Submissions by NSW Crown Solicitor

At [1]-[20] the submissions deal with the relevant history of the matter, and provisions of the CAT Act and National Law. As I have summarised the relevant background and statutory provisions it is unnecessary that I repeat those submissions.
The submissions from [21] -[25] cite a number of authorities, principally dealing with review of administrative decisions in either the Administrative Appeals Tribunal (the AAT) or in the Administrative Review jurisdiction of this Tribunal or the former Administrative Decisions Tribunal (the ADT). The submissions do not address in any detail authorities considering the words "misconceived or lacking in substance". I discuss those authorities later in these reasons.
The nub of the submissions made by the NSW Crown Solicitor is that there is no live controversy between the parties. It is further submitted that a hearing would involve substantial costs to the Tribunal and the parties, and "any reputational interest that the appellant may have had in demonstrating that the Decision was in error was vindicated when the Respondent corrected the Register and acknowledged its error in correspondence to the Appellant as well as before the Tribunal".

The issues in dispute

It is convenient that I commence my discussion by reference to the wording of s 55 (1) (b). Ms Rae made clear in her oral submissions that it was not suggested that Ms Ng's appeal is frivolous or vexatious. Rather she relied on the appeal being one which is misconceived or lacking in substance. However, the written submissions refer to a number of cases where a summary dismissal has occurred on the basis the proceedings are frivolous or vexatious. Accordingly, I have considered each of possible bases of dismissal. In so doing I note no procedural unfairness will be caused to Ms Ng as she has addressed the issue of frivolous and vexatious in her written submissions.
There is no dispute that conditions should never have been placed on Ms Ng's registration. There is also no dispute that the conditions which were placed on the public register were removed at or about 19 December 2016. I will return shortly to discuss the fact the conditions were purportedly removed under s 125 of the National Law.
Nor is it in dispute that AHPRA have agreed to pay Ms Ng's legal costs incurred to 24 February 2017.
I am then concerned primarily to consider if Ms Ng's appeal has any substance, or if its substance only be determined at the hearing of the appeal. I later consider what relief the Tribunal can grant if it allows the appeal.

The authorities

The phrase "lacking in substance" has been considered by courts and tribunals in numerous decisions with differing emphases.
The phrase "lacking in substance" was considered by the Western Australian Court of Appeal in Cocks MacNish & Anor v Biundo [2004] WASCA by Jenkins J. His Honour was hearing an appeal by a firm of solicitors from a decision of the Equal Opportunity Tribunal against the refusal of the Tribunal to dismiss an application by a woman who asserted she had been subject of discrimination on the grounds of gender and pregnancy. The solicitors asserted the woman's grounds in her application were misconceived or lacking in substance.
His Honour noted differing judicial interpretation of the words. He recorded that in Langley v Niland [1981] 2 NSWLR 104 Hunt J at p 107 said lacking in substance referred to "the insufficiency or to the absence of merit of the factual basis for the allegations made in the complaint". Hunt J was noted to refer to the word "misconceived" saying "the word should not be given a meaning beyond a complaint founded on a wrong idea as to the facts so that a common genus or class is maintained with the other three adjectives utilised".
Jenkins J explained that a number of Federal Court decisions had endorsed the views of Sir Ronald Wilson sitting as President of the Human Rights and Equal Opportunity Commission in Assal v Department of Health Housing and Community Services (1992) EOC 92 93-409 who said: The meaning of the term 'lacking in substance' has been considered in a number of decisions of the Commission. My view …is that a claim which presents no more than a remote possibility of merit and which does no more than hint at a just claim would ordinarily be found to be lacking in substance
After considering the decisions of the Court of Appeal of the Victorian Supreme Court in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102, where the majority did not follow Sir Ronald Wilson's interpretation, Jenkins J said at [30]: The distinction between the tests adopted by the Federal Court and the Victorian Court of Appeal has been said to be "of such subtlety as to make it unlikely that a choice between one formulation or the other would affect the decision in anything but an exceptional case" Legal Services Commissioner v Ball [2001] NSWADT 86. I agree with this comment. However, I prefer Ormiston JA's formulation of the test which, broadened, is that the onus is on an applicant respondent under s 125 of the Act to show the complaint is misconceived or lacking in substance, that is the complainant has no arguable case, in fact or law, which should be allowed to be resolved at a full hearing.
In Zouk v The Owners Corporation of Strata Plan 4521 [2005] NSWSC 845 Malpass AJ referred to the words "frivolous", "vexatious", "misconceived" and "lacking in substance" as follows: It could be expected that Parliament had intended that each of the words "frivolous", "vexatious", "misconceived" and "lacking in substance" be given a different meaning. Minds may differ as to what meaning should be given to each of the words. Such a collocation of words has appeared in other contexts (including other New South Wales statutes). There has been judicial consideration of some of them (see, inter alia, Langley v Niland [1981] 2 NSWLR 104 and Cocks Macnish & Anor v Biundo [2004] WASCA 194) and the cases throw up different views. These views have to be seen in the context in which they have been expressed. It seems to me that "lacking in substance" in its present context was intended to have the connotation of the appeal lacking in merit in an essential sense and embracing matters of fact and/or law. What may fall within that category may be left to be determined having regard to the particular circumstances of the case before the court.
In AVS Group Australia Pty Ltd and Tony Sleiman v Commission of Police [2012] NSWADTAP 24 O'Connor J made a number of observations which I consider to be apposite to these competing applications.
His Honour was dealing with an application for summary dismissal of an application for administrative review against refusal by the Commissioner to grant a firearms licence to the applicant. By the time the application was listed before the Tribunal the renewal period during which a licence could be granted had expired. The Commissioner argued that the applicant therefore lacked standing to bring the review.
O'Connor DCJ explained: There is no fixed rule of the kind for which the Commissioner contends that would have required the Tribunal to enter an order of dismissal simply because the underlying entitlement, licence or authority had ceased to operate. In these circumstances, the question of whether the Tribunal should continue to deal with the dispute is to be judged by reference to discretionary considerations relating to the proper management of the proceedings, and having regard to the statutory powers given to the Tribunal including its formal powers of dismissal. Those discretionary considerations will include the question of whether there is a live dispute or controversy. In that regard, I accept, of course, that it is not appropriate that the Tribunal, or the Appeal Panel, spend time dealing with idle disputes or giving advisory opinions, both for resources reasons as well as ones of intellectual precision. I accept, too, that a dispute may lose its character as a real controversy during the time it is before the Tribunal or the Appeal Panel.
Another recent administrative review decision (Fox v Commissioner of Police, NSW CATAD 77) considered the question of summary dismissal under s 55 of the CAT Act, Professor Walker, Senior Member referred to a number of administrative law authorities in his reasons as follows: Section 55(1)(1)(b) provides that the tribunal "may dismiss at any stage any proceedings before it" if it considers that "the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance". In everyday usage such language would appear to carry somewhat censorious overtones, but its technical legal meaning is simply that the application lacks a legal foundation. Thus in 601 Management Company Pty Ltd v Commissioner of State Revenue [2011] VCAT 2129, [12], the Victorian tribunal observed that the words "frivolous, vexatious and lacking in substance are very pejorative terms" that refer, in this context, "merely to matters which are not legally properly based". The term "misconceived" represents a claim that does not "disclose a cause of action", while "lacking in substance" may be seen as referring to a claim where the defendant could obtain summary judgment: Alchin v Rail Corporation of New South Wales [2012] NSWADT 142. There is also an overlap between the concepts identified in s 55(1)(b). For example, a proceeding may be frivolous or misconceived because it is lacking in substance: Worldwide Enterprises Pty Ltd v Westpac Banking Corporation [2010] VCAT 1125, [39]. The words "at any stage" mean inter alia that an application that is legitimate when commenced can become vexatious because of changes in circumstances. Thus, if no purpose will be achieved by continuing the application, even though the applicant is genuine in his or her belief in the matter raised, the application should be struck out: Re Williams and Australian Electoral Commission [1995] AATA 160, (1995) 38 ALD 366. The defect must be apparent on the face of the pleading (Cairns, Australian Civil Procedure, 10th edn. 2014, 508) or, in the case of tribunal proceedings on the face of the statements of facts and contentions, and evidence is not normally admissible on the point (ibid). A proceeding that constitutes an abuse of process may be dismissed as frivolous or vexatious: Re Hinds and Australian National University [2012] AATA 495, (2012) 129 ALD 476, 480, [18] (the tribunal in that case assumed the correctness of a submission on that point by ANU); see also Pearce, Administrative Appeals Tribunal (2014), 15.14. In Re Filsell and Comcare [2009] AATA 90, [33], Jarvis DP set out the principles to be followed in relation to such applications under the corresponding federal legislation. They included the following: (a) the word "frivolous" in combination with "vexatious" is a technical legal term, which means that there is no legal basis for the proceeding; it does not necessarily connote that an applicant has acted frivolously in bringing proceedings…. (b) the expression "vexatious" can include proceedings brought with the intention of annoying or embarrassing or harassing the other party, or for some collateral purpose other than having the court or tribunal adjudicate on the issues raised by the proceedings, or, irrespective of the motive of the litigant, if the proceedings are "so obviously untenable or manifestly groundless as to be utterly hopeless": Attorney-General v Wentworth (1988) 14 NSWLR 481, 491 per Roden J, or if the proceedings have "no reasonable prospect at all of success"…. A proceeding is thus vexatious if it is brought for a collateral purpose (Cabot v City of Keilor [1994] 1 VR 220, following Wentworth) or if the outcome of the proceedings, whether successful or not, will be devoid of any practical effect: Re Williams at 374. The proceeding is "misconceived" if it is obviously untenable, for example if the claim is statute-barred: Sleigh v Victoria [2010] VCAT 2057, [8]). The cost implications for both the tribunal and the respondent of continuing the proceeding are also relevant, as Jarvis DP observed in Filsell: (d) However, is proceedings have no reasonable prospects at all of success, they should be dismissed …, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing" (loc. cit. supra). That consideration was also applied in Re Irving and Repatriation Commission (1997) 46 ALD 20. The tribunal (the AAT) there stated that the desire to restore honour and secure vindication had to be balanced against other factors, including the cost to the respondent. The proceedings in that case could have no practical effect as the applicant would receive no monetary benefit from a favourable result. They should therefore be dismissed as vexatious (at 26). Where the applicant is seeking only restoration of honour (i.e. clearing his name) and has no chance of success in the proceeding, the matter should be dismissed (id.). While the power should be exercised cautiously and sparingly (Re Williams, [39]), the High Court explained in Williams v Spautz (1992) 174 CLR 509 that it is not necessary for the sole purpose in continuing an action to be collateral to the process, and concluded rather that it is sufficient that the collateral purpose is the predominant one. That proposition was adopted in Re Hinds and Australian National University [2012] AATA 495, (2012), 129 ALD 476, 480 - 481; see also Burns v Laws [2005] NSWADT 229, [9]. In Spautz, Brennan J pointed out that there is no impropriety of purpose in maintaining a proceeding with an ulterior purpose or motive, but said the matter should be dismissed if the proceeding was for a purpose that did not include, at least to any substantial extent, the obtaining of relief within the scope of the remedy.
In his written submissions Ms Ng's solicitor refers to the decision of O'Connor DCJ in Ybasco v Director-General of Transport [199] NSWADT 28. The President of the former ADT refused to summarily dismiss an appeal where a taxi-driver had appealed against the suspension of his license. However, by the time the matter came before the Tribunal the suspension had been lifted. The President refused to dismiss the appeal on the basis that the Tribunal had power to determine the appeal noting that, on review the decision, the Tribunal could substitute a new decision and that decision "had the effect of as the decision of the administrator on and from the date of the administrator's actual decision".
In the course of his discussion the President referred to a decision of the AAT in Coyne v Comcare Australia (1995) 37 ALD 553. The President explained: …the Tribunal found that the department's reversal of a previous decision had deprived the Tribunal of jurisdiction to review the revoked decision. In that instance the department had reversed a previous decision plainly affected by error.
The President contrasted the facts in Coyne with the situation before him because the decision was regarded by both the appellant and the Tribunal as having had an operative effect for a period. He also noted that the Tribunal should "exercise care" in continuing to review a decision where having regard to "the circumstances the Tribunal is satisfied that there is no longer a live controversy justifying the exercise of its jurisdiction".
It is relevant that I also refer specifically to two of the authorities on which the NSW Crown Solicitor relies in her submissions. First is the oft cited decision in Williams and Australian Electoral Commission and the Greens (Party Joined) [1995] AATA 160, (1995) 38 ALD 366 and secondly the decision in Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3. Each of these administrative law decisions involved unique factual circumstances. The decisions must be read in the context of the statutory provisions under consideration. In each case the underlying basis for the review sought had cease to exist when the matter came before respectively the AAT and the Full Court of the Federal Court.
The gravamen of the decisions in Williams and Fearnley is that the outcome of the proceedings would not have any practical effect. Nor, as compared with the situation in AVS Group, did the decisions raise any issue of reputational damage likely to have ongoing consequences. While the proceedings were not vexatious when commenced they were found to be vexatious because they would impose unnecessary expense and hardship to the respondents.

Discussion and conclusions

The proceedings have a number of unique features not entirely replicated in the administrative law decisions.
As a starting point it is useful to remember that the power to dismiss proceedings summarily is one to be used sparingly and with great care (see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125).
I accept that as at 2 December 2016 when Ms Ng lodged her appeal that she did so by right, and at that time it appeared she had a genuine cause of action. Notwithstanding the position now adopted by AHPRA on behalf of the Board that the decision of the Board was affected by "jurisdictional error", conditions were recorded on the public register (see s 225 of the National Law). Ms Ng was entitled to appeal against the imposition of the conditions (see s 175 of the National Law).
The NSW Crown Solicitor's submission that the action of the Board to remove the conditions from the public register was made under s 125 on 19 December 2016 raises the question of invalidity of the removal action. Nor were the reasons for the removal of the conditions given to Ms Ng on 19 December 2016 valid. It appears that Board's reasoning at that point discloses an endeavour to erroneously use as a basis for the removal of the invalid conditions from the public register the provisions of s 125 of the National Law. Thus, I am satisfied that at least up until 19 December 2016 the provisions of s 55 (1) (b) had no application.
I also accept that Ms Ng has grounds for asserting she has suffered reputational damage albeit the invalid conditions were on the public register for a relatively short period of time (1 October 2016 to 19 December 2016). However, unlike the facts in AVS Group the reputational damage will not have ongoing consequences affecting future applications for registration. I have not therefore placed any significant weight on this factor, particularly as the Board's error will be a matter of public record with the publication of these reasons and Ms Ng's reputation, if it was impugned, will be restored.
I turn then to whether the position adopted by AHPRA that the conditions were not validly imposed, being made as the result of a factual error, gives the appeal a different character to cases where a decision has been made but is challenged on the basis it is not the correct or preferable decision, or because the applicant's status has changed since the lodging of the application, or a complaint has no substance in fact or law. In other words, are the proceedings now frivolous in the sense described by Ormiston JA in State Electricity Commission of Victoria v Rabel in that they are lacking in substance because no practical outcome will result from the hearing of the appeal. Alternatively, should the appeal continue because a void or voidable decision resulted in the improper recording of conditions, and conditions, once recorded, could only be removed under s 127 (1) (a) of the National Law or by an order of the Tribunal under s 175C (1) (c) of the National Law. Section 127 (1) (a) requires a Board to "reasonably believe" that a condition or conditions are no longer necessary.
Conditions on a practitioner's registration are imposed under s 83 (1) and must be reviewed within a period (see s 83 (2). Section 83 (1) provides as follows: 83 Conditions of registration If a National Board decides to register a person in the health profession for which the Board is established, the registration is subject to any condition the Board considers necessary or desirable in the circumstances.
Section 25 (f) of the National Law requires AHPRA in conjunction with National Boards, to keep up-to-date and publicly accessible national registers of registered health practitioners for each health profession.
As the factual basis on which the Board considered it was necessary or desirable in the circumstances to impose the condition the Board was in error, it is the position of AHPA that the decision to impose conditions is a nullity and of no effect. Thus, the conditions were invalid, and the register incorrect. This being the case it was incumbent on the Board to notify AHPRA of its error to enable rectification of the register. I was not directed to any provision of the National Law which specifies how the register may be corrected if it records an invalid decision of a Board or incorrectly records a decision of the Board, a Council or the Tribunal.
However, I have taken into account Cl 7 of Schedule 7 of the National Law. This clause requires the Tribunal when interpreting a provision of the National Law to prefer the interpretation that will best achieve the purpose or object of the Law.
In applying Cl 7 I have had regard to the purpose of the register namely to ensure it accurately reflects a person's registration status so that status may be relied on by the public. I also take into account s 3A of the National Law that requires a decision maker in NSW to have the health and safety of the public as the paramount consideration. Taking those provisions into account, and absent being directed to any other corrective mechanism available, it appears the Board had power to direct AHPRA to remove the conditions under s 127 of the National Law it having formed a view, correctly, that the conditions were void being tainted by jurisdictional error as discussed below.
In reaching the decision that the conditions were "plainly affected by error", the matter is on all fours with the situation before the AAT in Coyne v Comcare Australia.
I note that Ms Ng submits that the Board's decision was "unreasonable" and that she will be denied procedural fairness if the appeal is not heard.
There is a concession by AHPRA that there was no proper basis for the exercise of power undertaken by the Board in imposing the conditions under s 83 (1) (a). The principles relating to jurisdictional error in the context of administrative review are explained by Gummow J in Minister for Immigration v Eshetu (1999) 197 CLR 611; [199] HCA 21. Those principles are extensively reviewed by the NSW Court of Appeal in D'Amore v Independent Commission Against Corruption [2013] NSWCA 187. Ms D'Amore sought judicial review of a decision of ICAC that she had engaged in corrupt conduct on the asserted basis of factual error by ICAC. Beazley JA explained the principles as follows: Where legislation requires a person to be satisfied of a specified matter, the person being so satisfied is a jurisdictional fact: see Minister for Immigration v Eshetu; M70/2011 v Minister for Immigration and Citizenship; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12. In this regard, irrationality and illogicality in decision making, including in the formation of a state of satisfaction, may constitute jurisdictional error.
Here s 83 (1) required, as a pre-requisite to the imposition of conditions, a factual finding by the Board that such conditions were "necessary or desirable in the circumstances". The basis on which the Board formed its view was on a mistaken view that Muxiang was a restricted substance. The Board could not, in those circumstances, have been satisfied of the necessary pre-condition to impose the condition. AHPRA acknowledges that, if an appeal proceeds, the necessary jurisdictional fact to be found to impose conditions is absent.
A Tribunal hearing the appeal is to conduct a new hearing, and may receive fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Board. Assuming the correctness of Ms Ng's assertions, there would be no need for the Tribunal to consider any material than the material presented by Ms Ng to gain her unrestricted registration in the division of Chinese Herbal Dispensing. It is not necessary for Ms Ng as the appellant to demonstrate an error of law by the Board, rather the hearing would be one to determine whether she is entitled to unrestricted registration. Ms Ng already has unrestricted registration in the relevant division. In these circumstances I am satisfied that, as the Board does not contest the fact that Ms Ng should have unrestricted registration, the appeal lacks substance in fact and in law.
The futility of the appeal proceeding is demonstrated by reference to the powers a Tribunal may exercise on hearing the matter. There is no suggestion by the Board that it would seek its decision be confirmed under s 175 (1) (a) or amended under s 175 (1) (b). If the Tribunal substituted a decision under s 175 (1) (c) it could order that Ms Ng have unrestricted registration in the division of Chinese Herbal Dispensing. Such an order would be otiose as Ms Ng currently has such registration, and the Board acknowledges her unrestricted registration has been in place since 1 October 2016. There is no longer a live controversy to be determined.
I also take into account the objects of the CAT Act, and the cost and time that will be expended by the parties to proceed with an appeal the outcome of which will have no practical utility. In that regard, I take into account the principles discussed in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 and the objects of the CAT Act particularly to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
The only practical outcome of the appeal would be to highlight the Board's errors which are conceded. Insofar as any proceedings in this Tribunal can restore Ms Ng's reputation, I am satisfied that has been achieved in these reasons. Ms Ng has had an opportunity to point out the errors of the Board in her oral and written submissions and those provided by her solicitor. I am satisfied procedural fairness has been afforded to her.

Costs

AHPRA on behalf of the Board have conceded that an order should be made that it pays Ms Ng's costs up to the directions hearing held on 24 February 2017.
In appeal proceedings under the National Law a Tribunal may make any order for costs it thinks appropriate. Further, Cl 13 of Division 5D provides as follows: (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.
As the Tribunal for the purposes of hearing this application is constituted by me as List Manager, I am satisfied I have the power to award costs if appropriate to do so.
I am satisfied that it is appropriate to order that the Board pay Ms Ng's costs up to and including the directions hearing of 24 February 2017 including her Stay Application.
While Ms Ng was not successful in having her appeal listed for hearing, the matters raised in this application were complex, and had their genesis in the Board's erroneous decision. However, Ms Ng did not consent to her appeal being withdrawn with her costs paid up to 24 February 2017. She did sensibly however agree to the matter being determined on the papers thus substantially confining each party's costs. Balancing these factors I find the appropriate order in respect of any legal costs incurred after 24 February 2017 is that each party should bear their own costs.

orders 1. The appeal lodged on 2 December 2016 is dismissed. 2. The Chinese Medicine Board is to pay Ms Wun Fan Ng's costs of and incidental to the proceedings up to and including 24 February 2017 as agreed and failing assessment under the Legal Profession Uniform Law (2014) NSW. 3. Each party shall pay their own costs incurred after 24 February 2017.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 15 March 2017 - Paragraphs renumbered. 15 March 2017 - date amended 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 2017

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Judgment (12 paragraphs)

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Cases Cited (17)

Cited By (9)