[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
MEAGHER JA: The Court has before it two motions filed by the plaintiff (Practitioner).
The first motion, filed on 4 May 2015, seeks orders (beginning at paragraph 2) including:
3. A stay of decision by Acting Judge Frank Marks of the NSW Civil and Administrative Tribunal.
4. An extension of time for appeal for merits review of decision by Acting Judge Frank Marks and New South Wales Civil and Administrative Tribunal, until all judicial reviews have concluded in the New South Wales Court of Appeal and High Court of Australia and 28 days after that, be granted.
The "decision" referred to is, in fact, two decisions of the New South Wales Civil and Administrative Tribunal (NCAT). The first was delivered on 5 February 2015: Health Care Complaints Commission v Quach [2015] NSWCATOD 2. The second was delivered on 21 April 2015: Health Care Complaints Commission v Quach (No 2) [2015] NSWCATOD 32.
Quach v Health Care Complaints Commission [2015] NSWCA 187 | Case summary | Zoe
By his amended summons, dated 12 May 2015, the Practitioner seeks an order that each decision be made or declared "void". That relief is sought by way of judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW). The same order is sought by paragraph 2 of the first motion. That order cannot be made on an interlocutory application and without a final determination of the application for judicial review. The order sought by paragraph 5 of this motion concerns the provision to the Practitioner of a transcript of the proceedings before NCAT. That has occurred.
By the second notice of motion filed on 23 June 2015, the Practitioner seeks the following orders:
1. A stay of decision by Acting Judge Frank Marks of the NSW Civil and Administrative Tribunal.
2. Be registered unconditionally, as a medical practitioner.
The second of these orders is not sought by the amended summons. Nor could it be made, either on a final or interlocutory basis, in judicial review proceedings directed to quashing orders made by NCAT in the exercise of the disciplinary powers given in Pt 8, Div 3, Subdiv 6 of the Health Practitioner Regulation National Law (NSW) (the National Law). See Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [110].
It remains necessary to address the Practitioner's applications for a stay of those decisions and an extension of the time for filing an appeal for a "merits review" of those decisions.
[3]
Background
Ten complaints were made concerning the Practitioner. They included complaints of professional misconduct, impairment and a lack of sufficient mental capacity, knowledge and skill to practise as a health practitioner. Those complaints were made by two Notices of Complaint (described as the First Notice of Complaint and the Second Notice of Complaint). On 5 February 2015 NCAT made findings that each of those ten complaints was proved: [2015] NSWCATOD 2. Those findings included two findings of professional misconduct under s 139E of the National Law, a finding of "impairment" within the terms of s 5 of the same law and a finding of lack of "competence" to practise under s 139 by reason of that impairment: [2015] NSWCATOD 2 at [334], [335], [366], [367], [419]-[420], [422]. After delivery of that first decision NCAT adjourned to allow for the filing of evidence and submissions in relation to the hearing as to what, if any, protective orders should be made as a consequence of those findings.
In February 2015 the Practitioner brought two judicial review proceedings in the Supreme Court, seeking orders that those findings be set aside and any further hearing prevented. On 24 March 2015 this Court dismissed each of those proceedings with costs: Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63.
On 10 April 2015 the second hearing before NCAT proceeded and, as has already been mentioned, on 21 April 2015 reasons were given for the making of the following orders:
(1) The registration of the respondent is cancelled.
(2) No application for review may be made for a period of 7 years from this date
(3) The respondent is prohibited from providing any health service on a public, private or volunteer basis including community health services, counselling, teaching, mental health services, health education services and welfare services.
(4) The respondent is to pay the costs of the complainant in and about these proceedings.
(5) Liberty to apply is granted with respect to costs.
[4]
Application for a stay
This Court has a discretion, under s 66 of the Supreme Court Act, to stay, in whole or in part, the order or decision which is the subject of an application for judicial review.
The Practitioner seeks a stay of the order made by NCAT on 21 April 2015 that his registration is cancelled.
That order operated immediately and the evidence is that on 24 April 2015 the Practitioner's name was removed from the Register of Medical Practitioners kept by the Medical Board of Australia.
That being the position there is no continuing operation of that order which might be the subject of a stay: see McBride v Walton (Court of Appeal (NSW), Handley JA, 27 August 1993, unrep).
The order cancelling the Practitioner's registration was made by NCAT in the exercise of the protective power under s 149C of the National Law to ensure that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered to do so. The cancellation order was made on the basis of the findings of professional misconduct and lack of competence by reason of impairment, as outlined in [8] above. Having regard to the serious nature of those findings and the public interest to which I have referred, this is not a case in which any discretion to grant a stay would have been exercised, had the order had an effect in the future.
Finally, the application for a stay is made in proceedings for judicial review in circumstances where the Practitioner has an appeal as of right to this Court from the final orders made by NCAT on a question of law and may appeal by leave on any other ground: Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), Sch 5, Pt 6, cl 29. As Sackville AJA observed in Quach v New South Wales Civil and Administrative Tribunal at [51], in such a case relief of the kind available under s 69 will not generally be granted. Had the Practitioner challenged NCAT's final orders by way of appeal, the fact of the appeal would not itself have affected the operation of the decision under appeal. Each of these considerations would have provided an additional reason for not granting a stay, if the cancellation order made by NCAT had any continuing operation.
[5]
Application for an extension of time
As is noted above, the Practitioner had a statutory right of appeal from NCAT's decision of 21 April 2015: CAT Act, Sch 5, Pt 6, cl 29. The time for bringing that appeal was within 28 days of that decision: CAT Act, s 84(2); Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.16(1).
The Practitioner has not pursued any statutory appeal notwithstanding that at the directions hearing on 15 June 2015 reference was made to his entitlement to do so and the fact that its existence was a factor to be taken into account when deciding whether relief of the kind available under s 69 would be granted.
The statutory right of appeal for a "merits review" is only by leave. Any application for leave should be made by a summons seeking leave to appeal and accompanied by a draft notice of appeal which specifies the grounds sought to be argued: UCPR, rr 51.10, 51.12. The identification of those grounds enables the Court to address the question of leave in relation to the arguments sought to be made. Such an application for leave is not made by way of motion in proceedings brought under s 69 of the Supreme Court Act.
More than 28 days have passed since the relevant judgment and orders and the Practitioner requires an extension of the time in which to file the summons seeking leave: UCPR, r 51.10(2). An application for such an extension ordinarily should be accompanied by evidence which explains the reasons for any delay.
The extension of time sought by the Practitioner is for such a period as would permit "all judicial reviews" to have been concluded. In doing so, it wrongly assumes that relief by way of judicial review should be sought before any rights of appeal are exhausted. Where there is, as here, a remedy by way of appeal which is available and effective, that remedy ought be pursued first and the failure to do so will generally provide a reason for the refusal of any relief by way of judicial review: see Quach v New South Wales Civil and Administrative Tribunal at [51]; and Hill v King (1993) 31 NSWLR 654 at 656, 658-659.
Having regard to these considerations the Practitioner's application for an extension of the time in which to bring an "appeal for merits review" should be refused. Any such application should have been brought by way of summons seeking leave to appeal. The application does not specify the grounds sought to be argued in any "merits review" and it wrongly assumes that the claim to relief by way of judicial review should be dealt with before any rights of appeal.
[6]
Conclusion
The Practitioner's notices of motion should be dismissed with costs.
At the end of oral argument, counsel for the second defendant Commission indicated that an order would be sought for payment of costs assessed on an indemnity basis for all or part of the period in which costs were incurred.
To accommodate the making of such an application, the following orders and directions are made:
Dismiss the plaintiff's notices of motion filed on 4 May 2015 and 23 June 2015.
Order the plaintiff to pay the second defendant's costs of those motions.
Direct that the second defendant serve on the plaintiff and provide to my Associate by 5pm on 10 July 2015 written submissions (not to exceed three pages) addressing the basis upon which it is submitted those costs should be assessed.
Direct that the plaintiff serve on the second defendant and provide to my Associate by 5pm on 16 July 2015 written submissions (not to exceed three pages) in response to those of the second defendant.
[7]
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Decision last updated: 08 July 2015