Trinh v Medical Council of New South Wales [2023] NSWCATOD 140 | Case summary

The time within which to appeal

Both the decision under s 150 of the National Law and the decision under s 150A of the National Law were endorsed with a note to the effect that an appeal to the Tribunal must be lodged "within 28 days after notice of the action taken by the Council under section 150 of the National Law (NSW) has been given to the practitioner".
Dr Trinh, in her External Appeal Form, characterises her appeal as an appeal made outside the time allowed.
The National Law provides, in s 161: 161 When appeal must be made [NSW] An appeal under this Division or Division 14A, other than an appeal on a point of law, must be made - (a) within 28 days after the day the person making the appeal was given written notice of the reasons for the decision being appealed against; or (b) within the longer period allowed by the Tribunal.
"This Division" is a reference to Division 6 of Part 8 of the National Law, in which both s 159 and s 159B appear.
The Civil and Administrative Tribunal Act 2013, in ss 40 and 41, says: 40 Making of applications and appeals An application or appeal to the Tribunal is to be made in the time and manner prescribed by enabling legislation or the procedural rules. 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
The Civil and Administrative Tribunal Rules 2014 (the Rules) provide, in rule 25: 25 External and internal appeals (1) An external or internal appeal (including, where required, an application for leave to appeal) may be made by lodging a notice of appeal. (2) The notice of appeal must be - (a) in or to the effect of the approved form, and (b) duly completed, and (c) lodged at the Registry, and (d) accompanied by the applicable fee (if any) for the appeal. (3) … (4) Unless the Tribunal grants an extension under section 41 of the Act, an external or internal appeal must be lodged - (a) in the case where the enabling legislation specifies the period within which the appeal is to be made - within the period specified, or (b) in the case of an internal appeal against a decision made in residential proceedings - within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later), or (c) in any other case - within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later). (4A) For the purposes of subrule (4), the day on which reasons are given is the day on which reasons are first given, whether orally or in writing. (5) …
Section 159 of the National Law relevantly provides: 159 Right of appeal [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession - (a1) … (a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension; … Note - An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013.
Section 159B of the National Law relevantly provides: 159B Appeals on point of law [NSW] (1) A registered health practitioner or student who is the subject of action taken by the Council for the health profession under section 150, 150A or 150C may appeal, with respect to a point of law, to the Tribunal. Note - An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) Subsection (1) does not limit a right of appeal under section 159. (3) The Council must not make a decision that is inconsistent with the Tribunal's decision with respect to a point of law under this section. (4) A registered health practitioner or student may not make an application to the Supreme Court for judicial review of action taken by a Council under section 150, 150A or 150C, being an application alleging any error of law, until an appeal under this section in respect of the point of law concerned has been made and disposed of.
Dr Trinh does not specify, on her external appeal form, which section of the National Law she relies upon to bring her external appeal. The Grounds for Appeal, read with the written submissions, disclose that Dr Trinh's sole contention is that the delegations to the delegates who made the decision under s 150 of the National Law and the delegations to the delegates who made the decision under s 150A of the National Law were invalid. I determine, on that basis, that the external appeal was filed under s 159B of the National Law, because it is an appeal with respect to a point of law.
Although directions were made in relation to the exchange and filing of submissions concerning the question of an extension of time for the filing of the appeal, neither side addressed the issue in their written submissions. The information given concerning the proceedings in the Supreme Court, which is summarised above, was provided in a section of the Statement of Agreed Facts entitled "Facts relevant to the procedural history and an extension of time".
In EFQ v Medical Council of New South Wales [2021] NSWCA 167 (EFQ), the Court of Appeal determined the question of whether there is a time limit for the filing of an external appeal under s 159B of the National Law. Bell P (as he then was), with whom Macfarlan JA and Brereton JA agreed, said that s 161 of the National Law was not to be read in isolation, but "contextually with the provisions of the [CAT Act] and the Rules relating to appeals" [15]. Bell P said that the Applicant in that matter required an extension of time within which to bring her s 159B external appeal under the CAT Act. The argument that there was no time limit on a s 159B appeal was wrong, as it overlooked the provisions of the CAT Act [14]-[16].
The consequence of the decision in EFQ, in this matter, is that the time for the filing of an external appeal against the decision under s 150 of the National Law expired 28 days from the day upon which the appellant was notified of the decision, pursuant to rule 25(4)(c) of the Rules. Dr Trinh was notified of the decision under s 150 of the National Law on 27 October 2021. The last day for the filing of an external appeal from that decision was 25 November 2021. The external appeal was filed on 17 March 2023. The appeal is more than 15 months out of time.
The factors to be considered in the exercise of the discretion to extend time under s 41 of the CAT Act are uncontroversial. They are set out in EFQ at [18] as follows: From the summary supplied in Jackson (Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22) at [22], the following four factors of relevance to the exercise of the extension discretion were identified: (1) the length of the delay; (2) the reason for the delay; (3) whether the applicant has a fairly arguable case; and (4) the extent of any prejudice suffered by the respondent to the application.
The delay of more than 15 months is considerable, particularly in the context of the first external appeal having been filed, withdrawn and dismissed within that period.
The only reason put forward for the delay is that the question of whether the delegations to the delegates who made the 150 decision and the delegations to the delegates who made the s 150A decision were invalid did not occur to Dr Trinh or her lawyers until they were served with Mr Maxwell's affidavit of 6 March 2023.
The Council has not complained that it would experience any prejudice, were time to be extended. In the context of this matter, both the extension of time and a refusal of the extension of time have the potential to prolong litigation in relation to the s 150 decision.
The principal difficulty for Dr Trinh in seeking an extension of time is that she concedes that she does not have a fairly arguable case before the Tribunal. Under the heading "Grounds for Appeal", on Dr Trinh's external appeal form, the following is written: …Dr Trinh contends that the delegations under which the s 150 Decision and s 150A Decision were purportedly made, according to Mr Maxwell's affidavit were, on their face inconsistent with the National Law and invalid. The challenge to the purported allegations is at [25]-[27] of Dr Trinh's written submissions. There is case law against Dr Trinh's position: Bhatia v NSW Medical Board [2007] NSWSC 1316 at [18] and [25]; Roehrich v New South Wales Medical Board [2004] NSWSC 1264, [79]-[80]. While these decisions are not binding on the Court of Appeal, they do bind the Tribunal. Dr Trinh accepts that the Tribunal should follow the reasoning in Roehrich and Bhatia and reject her appeal: see [28], written submissions.
Under the heading "Late Appeals" on the external appeal form the following words are written: De Trinh became aware of the argument available in relation to the purported delegations as a consequence of the Medical Council serving the affidavit of Mr Maxwell on 6 March 2023. An appeal is sought to the Tribunal to satisfy, to the extent necessary, the requirement of s 159B(4) of the National Law. Dr Trinh accepts that the Tribunal should follow the reasoning in Roehrich and Bhatia and reject her appeal.
In her written submissions to the Tribunal, Dr Trinh sets out the paragraphs of her written submissions to the Court of Appeal, which is the document she referred to in her Grounds of Appeal. The paragraphs referred to are as follows: Impermissibility of a non-specific delegation under the National Law 25. The first question that arises is whether a non-specific delegation is permissible. On their face, the purported delegations do not meet the requirement in the National Law that delegation of a function be to a person or body by name, or to a specified officer or the holder of a specified office under Schedule 7, cl 29(1). Although the Executive Officer is named by office (Sch 7, cl 29(1)(b)), it is not a delegation to the Executive Officer. The purported delegates are unspecified either by name or office. 26. There is case law against Dr Trinh's position: Bhatia, [18] and [25]: Roehrich v New South Wales Medical Board [2004] NSWSC 1264, [79]-[80], albeit decisions not binding on this Court. Dr Trinh contends they are inconsistent with the plain language of the National Law and are wrongly decided. In making this submission, Dr Trinh recognises that the Court may take into account the re-enactment presumption, given that Bhatia and Roehrich predate the enactment of the National Law. However, that presumption cannot be relied upon to perpetuate an erroneous construction and will not be permitted to prevail over an interpretation otherwise appearing to be correct: Wipro v NSW [2022] NSWCA 265 at [54]. Inconsistency with s 41J 27. The Council is not authorised to delegate its power of delegation: s 41J(1). In substance, that is precisely what the terms of Delegation 2.4 and the 2019 Delegation purport to do. The Executive Officer is purportedly empowered to delegate, to unnamed persons of his or her own choosing, the Council's functions under the National Law. This is also inconsistent with the express stipulation in s 41J(2)(b), given the Executive Officer power to subdelegate only functions that are delegated to the Executive Officer (ie, only those functions the Council determines would be appropriately exercised by the Executive Officer acting alone); see also cl 29(15) of Sch 6. This argument was also considered and rejected in Bhatia. If Dr Trinh's argument is good, it warrants the attention of this Court.
The National Law provides, in s 41J: 41J Delegation by Council and Executive Officer [NSW] (1) A Council may delegate to a person the exercise of any of its functions, other than this power of delegation. (2) An Executive Officer of a Council may delegate to a person the exercise of - (a) any of the functions of the Executive Officer under this Law, other than this power of delegation; or (b) any functions delegated to the Executive Officer by the Council, unless the Council otherwise provides in its instrument of delegation to the Executive Officer. (3) In this section, a reference to a person includes a reference to a group of persons, including a committee.
Schedule 7 of the National Law is entitled 'Miscellaneous provisions relating to interpretation'. Schedule 7, clause 29(1) and 29(15) provide as follows: 29 Delegation of functions (1) If this Law authorises a person or body to delegate a function, the person or body may, in accordance with this Law and any other applicable law, delegate the function to - (a) a person or body by name; or (b) a specified officer, or the holder of a specified office, by reference to the title of the office concerned. … (15) If this Law authorises the delegation of a function, the function may be subdelegated only if the Law expressly authorises the function to be subdelegated.
On 18 February 2015, the following delegation was made by the Council: To the Conduct Committee, or to two or more persons (at least one of whom is not a registered medical practitioner) approved by the Executive Officer, the power to act under Part 8, Division 3, Subdivision 7 of the Law.
On 3 December 2019, the following delegation was made by the Council: The Council delegates its functions under sections 150, 150A and 150C of the Health Practitioner Regulation National Law (NSW) to one or more persons appointed by the Executive Officer from time to time, in accordance with section 150(7) as applicable.
On 14 March 2022, the following "Approval pursuant to delegation by Council" was signed by the Executive Officer of the Council: In accordance with the delegation of the Medical Council of NSW "to two or more persons (at least one of whom is not a registered health practitioner) approved by the Executive Officer its power to act under Part 8, Division 3m, Subdivision 7 of the National Law (NSW)" I hereby approve the following three persons to exercise that power to act in relation to Dr My Le Trinh, MPO 280437, DOB 5 August 1966. Dr Candace Newberry Dr Guan Yeo Dr Catherine Berglund PhD
The approval in relation to the panel for the s 150A hearing was in similar terms.
In Roehrich v NSW Medical Board [2004] NSWSC 1264 (Roehrich), a relevantly similar set of delegations was considered, in the context of a challenge to their validity. Rejecting that challenge, Hulme J said, at [79]-[80]: 79 The question arises whether, within the terms of s136 [of the Medical Practice Act 1993, which was the equivalent provision to s 41J of the National Law] there was a proper delegation of the Board's powers to Professor Glover and Dr Kendrick. Does delegation to "two persons approved by the Registrar" - and who may or may not be known to the Board - amount to delegation "to a person" within that statutory provision? 80 I was referred to no authority on the question and I have found none. Although my mind has vacillated on the issue, ultimately I have reached the view that the delegation was valid and that the reference "to a person" does not require that the Board itself specify the person (or persons) to whom the delegation is made.
In Bhatia v New South Wales Medical Board [2007] NSWSC 1316 (Bhatia), Harrison J referred to the argument of the plaintiff that, in the absence of an express power to do so, a decision maker has no power to delegate a discretionary power to another person or body and said, at [18]: 18. In my opinion, s 136 is a complete answer to the plaintiff's contention. The first defendant had the power to appoint the third defendants. That was one of its functions. The first defendant delegated that function to the second defendant. Section 136(1) permitted it to do so. Pursuant to that delegated power, the second defendant appointed the third defendants. In doing so the second defendant exercised a function delegated to him by the first defendant. 19 This is not a case where it is difficult to ascertain whether a given act is one that the first defendant may authorise the second defendant to perform on its behalf. As a matter of construction of the Act that confers the power, no express restraint on the delegation would appear to exist. No argument was suggested in favour of the proposition that such restraint should be implied.
In Bhatia, Harrison J referred to the further argument, advanced by the plaintiff, that a delegation to an unnamed and unidentified person was invalid on its face. Harrison said, at [21]-[28]: 21 In Owendale Pty Ltd v Anthony and Anor (1966-1967) 117 CLR 539, the High Court said this at 563: "The objections made for the plaintiff are, first, that a delegation must be to a named person not to the holder of an office or person performing the duties of an office . . . As to the first of these matters, there might perhaps have been some room for argument, were it not for the decision of Starke J in Noble and Bear v The Commonwealth (1943) 17 ALJ 184. Since then, delegations to the holders of specified offices have become commonplace in the administrative system of the Commonwealth; and provided that there be an identifiable person the holder of the office, I consider they are a valid exercise of a statutory power to delegate 'to any person'." 22 Section 49(1) of the Interpretation Act 1987 is also relevant. It is in the following terms: " 49 Delegation of functions (1) If an Act or instrument confers a power on any person or body to delegate a function, the person or body may, in accordance with the Act or instrument, delegate the function to a person or body by name or to a particular officer or the holder of a particular office by reference to the title of the office concerned. " (Emphasis added). 23 According to the plaintiff's argument, the delegation in question did not authorise the appointment of a named person, or the holder of a specified office. It was a delegation authorising the appointment of "two persons approved by the Registrar". According to this argument, that delegation fell outside both the terms of s 49(1) and the words of the High Court in Owendale (supra). Accordingly, it was ultra vires the power of delegation and therefore invalid. 24 The first defendant argues, however, that the appointment was in fact not a delegation at all. It was no more than an exercise of the already delegated power to appoint the third defendants. 25 The first defendant undoubtedly delegated to the second defendant the power to perform whatever task is recorded in the August 2003 delegation. That task required the second defendant to appoint or approve or nominate etc two (as yet unnamed) persons to, among other things, conduct s 66 inquiries from time to time. The words used were descriptive of the task that had been delegated by the first defendant to the second defendant, and no more. They did not effect an appointment of the third defendants. In turn, no power to do anything was delegated to the third defendants until 29 October 2007 when the second defendant appointed them, in my view uncontroversially. 26 Hulme J considered effectively identical words to those of the August 2003 instrument in Roehrich v New South Wales Medical Board [2004] NSWSC 1264. His Honour had this to say at [79] -[80]: "[79] The question arises whether, within the terms of s136 there was a proper delegation of the Board's powers to Professor Glover and Dr Kendrick. Does delegation to "two persons approved by the Registrar" - and who may or may not be known to the Board - amount to delegation "to a person" within that statutory provision? [80] I was referred to no authority on the question and I have found none. Although my mind has vacillated on the issue, ultimately I have reached the view that the delegation was valid and that the reference "to a person" does not require that the Board itself specify the person (or persons) to whom the delegation is made." 27 The plaintiff submitted that this decision was wrong and that I should not follow it. Although I have taken a slightly different approach to his Honour, I am not prepared to say that the decision is wrong. Neither the approach taken by me nor by his Honour assists the plaintiff in the present case. 28 The plaintiff's third proposition is without substance.
The Tribunal is bound by the decisions in both Roehrich and Bhatia. Dr Trinh therefore does not have an arguable case before the Tribunal with respect to her only grounds of appeal, namely that the delegations in this matter are invalid. This applies to the delegations to the panel who made the decision under s 150A of the National Law as well as the panel who made the decision under s 150 of the National Law.
In these circumstances, the application for an extension of time must fail. I decline to extend the time for the bringing of this external appeal.
Had the appeal been within time, it would have failed, on the grounds set out in Roehrich and Bhatia.

Trinh v Medical Council of New South Wales

At a glance

Court

Decision date

Source

Judgment (5 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (6)

Cited By (1)