Singh v Medical Council of NSW

Further conduct of the proceedings

One member of the Tribunal having stood down, it then became necessary to consider the further conduct of these proceedings. The determination of this issue was, in one sense, more difficult than the application of the apprehended bias principles.
The determination of this matter requires the consideration of two Statutes, the National Law, and the Civil and Administrative Tribunal Act 2013.("the CATA"). In general terms, the National Law deals inter-alia with the regulation of health practitioners. Part 8 of that Act deals, in general terms, with the performance and conduct of health practitioners. For the purpose of Part 8 certain matters are dealt with by this Tribunal. "Tribunal" is defined in Sec 138 to mean the Civil and Administrative Tribunal ("NCAT"). NCAT is established by the CATA. That Act contains detailed provisions dealing with the jurisdiction and powers of NCAT, and ancillary matters. Sec 165A of the National law makes it clear that in relation to Division 10, which deals with the constitution and proceedings of NCAT for the purposes of the National Law, those provisions are to apply despite anything to the contrary in the CATA.
The relevant provisions within the National Law are in the following terms; 165A Relationship with NCAT Act [NSW] The provisions of this Division are intended to apply despite anything to the contrary in the Civil and Administrative Tribunal Act 2013. Subdivision 2 Constitution of Tribunal 165B Constitution of Tribunal for complaints, applications and appeals [NSW] (1) If a complaint is referred to the Tribunal or an application or appeal is made to the Tribunal under this Law - (a) the Tribunal must inform the Council for the health profession of the referral, application or appeal; and (b) the Council for the health profession must select 3 persons (whether or not they are currently Division members) to sit as members of the Tribunal in the proceedings. Note. Schedule 5 to the Civil and Administrative Tribunal Act 2013 provides the President must appoint a person as an occasional member for particular proceedings entered in the Health Practitioner Division List if that person has been selected for participation in the proceedings in accordance with any applicable procedures specified by or under this Law. If a person selected under subsection (1) (b) is not already a Division member, the President will be required to appoint the person as an occasional member in relation to the proceedings. (2) Except as provided by subsections (4) and (5), the Tribunal, when conducting an inquiry or hearing an appeal under this Law, is to be constituted by - (a) 1 Division member who is an Australian lawyer of at least 7 years' standing or, in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer; and (b) 2 health practitioners selected for appointment by the Council as occasional members under subsection (1) (b) who are registered in the same health profession as the health practitioner or student the subject of the inquiry or appeal; and (c) 1 lay person (that is, a person who is not registered in the health profession) selected for appointment by the Council as an occasional member under subsection (1) (b) from among a panel of lay persons for the time being nominated by the Minister. (3) If the health profession has divisions, at least one and, if practicable, both, of the health practitioners referred to in subsection (2) (b) must be registered in the same division of the health profession as the health practitioner or student the subject of the inquiry or hearing. (4) The Tribunal, when constituted to hear appeals under this Law that are restricted to points of law, is to be constituted by - (a) in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer; or (b) in any other case, 1 Division member who is an Australian lawyer of at least 7 years' standing. (5) The Tribunal, when constituted to exercise a function under section 146D or 148G, is to be constituted by a Division member selected by the Tribunal List Manager. (6) A person is not to be selected to sit on the Tribunal if the person is a member of the Council. (7) An inquiry or appeal conducted or heard by the Tribunal under this Law may relate to more than one health practitioner or student if the complaint or complaints the subject of the inquiry or appeal arise from the same conduct. 165C Effect of vacancy on Tribunal [NSW] (1) If one of the members (other than the presiding member) constituting the Tribunal for the purpose of conducting a hearing under this Law vacates office for any reason before an inquiry or appeal is completed or a decision is made in respect of an inquiry or appeal, the inquiry or appeal may be continued and a determination made by the remaining members of the Tribunal. (2) If more than one of the members vacate office, or the presiding member vacates office, for any reason before the Tribunal has completed an inquiry or appeal or made a determination in respect of an inquiry or appeal, the inquiry or appeal is terminated. (3) When an inquiry or appeal is terminated, the Tribunal may be reconstituted in accordance with this Division for the purposes of conducting a new inquiry or appeal in respect of the matter concerned. (4) In this section: presiding member means the member referred to in section 165B (2) (a). The notation contained within Sec 165 B (1) (b) makes it clear that a member of NCAT constituted for the purpose of dealing with a matter under the National Law must be appointed an occasional member of NCAT.
The relevant provisions within CATA dealing with occasional members are as follows; 11 Appointment of occasional members (1) The President may, by written instrument, appoint a person to be an occasional member in relation to particular proceedings before the Tribunal if: (a) the person is qualified to be appointed as a member of the kind concerned, and (b) the President is satisfied that the appointment of the person as a member is necessary to enable the Tribunal to be properly constituted to exercise its functions in the proceedings. Note. Section 13 makes general provision with respect to qualifications for appointment. A Division Schedule for a Division of the Tribunal may, in some cases, make special provision for the assignment of members to that Division based on particular skills, expertise or qualifications. (2) Without limiting clause 12 of Schedule 2, the President may delegate the function of appointing occasional members to sit as Division members for a Division of the Tribunal to the Division Head of the Division or a List Manager of a Division of the Tribunal. (3) The instrument of appointment of an occasional member is to specify: (a) whether the member has been appointed as a Deputy President, principal member, senior member or general member, and (b) the proceedings in relation to which the member has been appointed as an occasional member. (4) An occasional member who is appointed to be a member in relation to proceedings that are allocated to a Division of the Tribunal is taken to be assigned as a Division member of that Division. (5) A person who is appointed as an occasional member holds office as such until the proceedings in relation to which the member has been appointed as an occasional member have been finally determined, unless the person sooner vacates office. (6) The proceedings in relation to which an occasional member has been appointed as an occasional member are not finally determined for the purposes of subsection (5) until: (a) the proceedings are withdrawn by a party before the substantial merits of the proceedings are considered by the Tribunal, or (b) the proceedings are dismissed by the Tribunal (as constituted by or with the member) before the substantial merits of the proceedings are considered by the Tribunal (including, where required, the giving of reasons for the dismissal and the determination of costs), or (c) the Tribunal (as constituted by or with the member) has completed all the processes necessary to decide the substantial merits of the proceedings (including, where required, the giving of reasons for the decision and the determination of costs), whichever occurs first.
Sec 7 of CATA deals with the circumstances in which an occasional member may be taken to have vacated his or her "office." There is, in our opinion, some significance in referring to the position of a member, including an occasional member as the holder of an office, for reasons to which we shall shortly refer. Sec 7 is in the following terms; 7 Vacancy in office of member (other than President) (1) The office of a member (other than the President) becomes vacant if the member: (a) dies, or (b) in the case of a term member - completes a term of office and is not re-appointed, or (c) in the case of an occasional member - when the proceedings in relation to which the member has been appointed as an occasional member have been finally determined for the purposes of section 11, or (d) resigns the office by written instrument addressed to the Minister, or (e) is nominated for election as a member of the Legislative Council or of the Legislative Assembly or as a member of a House of Parliament or a legislature of another State or Territory or of the Commonwealth, or (f) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or (g) becomes a mentally incapacitated person, or (h) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or (i) is removed from office under subclause (2). (2) The Governor may remove a member (other than the President) from office for incapacity, incompetence or misbehaviour.
Sec 7 is confined in its terms to the circumstances in which a person ceases to be a member, including an occasional member. It does not appear to us to cover the circumstances in which a member of the Tribunal determines on his or her own volition to stand down as a member of the Tribunal in the context of particular proceedings.
There is a provision within CATA dealing with the reconstitution of a Tribunal during the course of the proceedings if a member "becomes unavailable for any reason" by the replacement of a member. Sec 52 is in the following terms; 52 Reconstitution of Tribunal during proceedings (1) The President may replace the member, or one of the members, constituting the Tribunal after the consideration of a matter by the Tribunal has commenced if, before the matter is determined, the member: (a) becomes unavailable for any reason, or (b) ceases to be a member, or (c) ceases to have a qualification required for participation in the proceedings. (2) The President may not replace a member unless the President has first: (a) afforded the parties an opportunity to make submissions about the proposed replacement, and (b) taken any such submissions into account. (3) The Tribunal as so reconstituted is to have regard to the evidence, submissions and decisions in relation to the matter that were given or made before the Tribunal was reconstituted.
However, Sec 52 needs to be considered in the context of Sec 165C of the National Law which we have set out above. By reason of Sec 165A it is necessary to determine whether there is anything within Sec 52 which detracts from the operation of Sec 165C. Prima facie Sec 52 applies to the circumstances of these proceedings in that a member of this Tribunal has become unavailable, and arguably, by stepping down, has ceased to be a member. Moreover, prima facie, Sec 165C does not apply because it refers to a member who "vacates office". This would appear to be a reference to the holding of an office as a member of the Tribunal. Accordingly, it may be that if a person merely steps down as a member of a particular Tribunal, but nevertheless does not formally resign his or her office, then he or she has not vacated the office of member. If this is correct, then Sec 165C would have no application to those circumstances. Whilst it might be argued that in some circumstances the situation pertaining to a member of the Tribunal may ipso facto bring about the termination of his or her office because of the provisions of Sec 7 of CATA (eg death), this is not the situation which applies in the circumstances of these proceedings. In making these observations we acknowledge that Sec 11(5) of CATA provides that an occasional member may vacate his or her office prior to the final determination of the proceedings with respect to which the appointment as a member has been made. Despite the assistance of the parties by way of submissions, we remain unsure whether a determination made by a member that he or she should stand down would ipso facto bring about a termination of the office of occasional member, or whether some other additional step is necessary for this to occur.
Even if Sec 165C does not apply, and Sec 52 of CATA does apply, it is still necessary to consider the effect of Sec 165A of the National Law. This leads to a determination about whether the provisions of Sec 52 of CATA are contrary to anything contained in Sec 165C. In a narrow sense, Sec 52 of CATA deals only with the circumstances of the replacement of a member and Sec 165C facilitates the continuation of proceedings upon the vacation of office of a member. The former deals with membership only and not office, and the latter deals only with the vacation of office. The former would prima facie involve the exercise of a discretion on the part of the President after undertaking the mandatory step of canvassing submissions from the parties, and the latter might arguably involve the exercise of discretion on the part of the remaining members of the Tribunal. It is certainly arguable that both provisions could sensibly operate together, and to this extent the provisions of Sec 165A would not be attracted so as to give pre-eminence to Sec 165C.
The review of the relevant legislative provisions which we have undertaken above has highlighted some uncertainty as to the application of some of these provisions to the circumstances of these proceedings. Our tentative conclusion is that in all the circumstances the provisions of Sec 52 of CATA apply and that Sec 165C of the National Law does not apply.
In the course of submissions counsel for the respondent said "it is arguable, although by no means certain, that the matter could proceed with the remaining members." Whilst we have reached a contrary conclusion, we would add that that conclusion is also by no means certain.
The submissions of the parties about these matters and our consideration of them have been overtaken by the pragmatic approach that both parties ultimately adopted at the conclusion of the hearing. They pointed out that they wished to avoid any uncertainty as to the validity of the further conduct of the proceedings to minimise the prospects of any appeal, that even though a large quantity of evidence had been adduced it was in documentary form and no oral evidence had yet been given in the proceedings, that the spirit and intent of the National Law was that two medical practitioners participate in the proceedings as well as the two other members, and that the proceedings were required to be dealt with promptly and without undue delay. Given the joint position of both parties, we were persuaded that in all the circumstances of these proceedings, the most effective and pragmatic course of action was to facilitate the reconstitution of the Tribunal administratively and arrangements have been made for a hearing at the earliest possible date. (We are conscious that this will also avoid the necessity for a further hearing or other process before the President as required by Sec 52(2) of CATA). We have arranged for this to occur.

At a glance

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Judgment (5 paragraphs)

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Cases Cited (6)

Cited By (1)