Tsolis v Health Care Complaints Commission

The decision from which this appeal is brought

1. While that appeal was reserved, one of the psychologists who had been appointed as an "occasional member" of the Tribunal was appointed to the Psychology Council of NSW as a professional member. The view was taken that she should not continue to participate in proceedings in the Tribunal. Following an exchange of submissions, the Deputy President made the order that the inquiry should be continued and a determination made by the remaining three members of the Tribunal as originally constituted, and it is from that order that leave to appeal is sought. Her Honour referred to a dictionary definition of "inquiry", noted that a decision was distinct from an inquiry, and encapsulated her conclusion at [12]: If my understanding of the text is correct, the inquiry has not yet been completed, even though a Stage 1 decision has been made in respect of an inquiry. The legislative context, the purpose of the provision and the consequences of an alternative meaning support that interpretation.
2. Her Honour noted that the legislation proceeded on the basis that there would be a single inquiry following the receipt of a complaint, as did Simpson AJA's reasons in Health Care Complaints Commission v Robinson at [52], and that purpose and context supported that construction.
3. The central provision is s 165C of the National Law, which provides as follows: 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 parties' submissions

1. Mr Tsolis contended that the power under s 165C(1) was not available, and the Deputy President erred in concluding that it was. According to Mr Tsolis, the "inquiry" for the purposes of s 165C(1) was confined to either the five day hearing of the "Stage 1" proceedings, or alternatively the hearing and determination of that stage of the proceedings. On that construction, the inquiry was completed either on 27 May 2022, or 28 September 2022. Further, a decision had been made in respect of that inquiry, namely the "Stage 1" determination of NCAT. Accordingly, none of the preconditions to the power conferred by s 165C(1) to continue an inquiry constituted by a legal member and two non-legal members, as opposed to the default of one legal member and three non-legal members, was made out. Conversely, the Commission defended the reasons of the Deputy President that the power was available.
2. In the event that the Tribunal cannot continue as constituted by the three remaining members, the parties were divided as to what must occur. Mr Tsolis contended that the entire proceeding must start again, and the findings of unsatisfactory professional conduct and professional misconduct are to be disregarded. The Commission maintained that if there is to be another "Stage 1" hearing, it is one to which, through the doctrines of either res judicata or issue estoppel or both, the issues are circumscribed by reason of the determination of 28 September 2022. However, its primary submission was that the order authorises the Tribunal, reduced to three of its members, to proceed to hear and determine "Stage 2" of the proceedings.

Consideration

1. Was the power to order that the Tribunal be constituted by only three of its former members available? The issue is merely one of power; no submissions were made that, if the power were available, there was any reviewable error in its exercise by the Deputy President.
2. Dictionary definitions will not greatly assist, because the word "inquiry" is capable of sustaining either side's construction. Instead, as usual, it is necessary to consider the text of the section in its context.

Textual considerations

1. On any view of the matter, there are infelicities in the drafting of s 165C and cognate provisions of the National Law. The following matters appear on the face of s 165C.
2. First, one of the preconditions to the provision is that a member other than the presiding member "vacates office". The preceding provisions do not refer to the holding of any office or its vacation. Instead, s 165B(1) requires the Council for the health profession to select three persons to sit as members of the Tribunal who, together with a legally-qualified division member, are ordinarily to constitute the Tribunal when conducting an inquiry or hearing an appeal: s 165B(2), subject to exceptions in subs-s (4), (5), (5A). The particular provision which gives rise to this appeal is s 165B(6): "A person is not to be selected to sit on the Tribunal if the person is a member of the Council".
3. Those provisions refer to the selection of non-legal members to constitute the Tribunal, rather than any appointment to an "office". It was common ground that the prohibition in s 165B(6) engaged the precondition to s 165C(1) concerning a member "vacat[ing] office" (which accords with what was held in Health Care Complaints Commission v Dowla [2018] NSWCATOD 96 at [57]), and I shall proceed accordingly.
4. The prohibition in s 165B(6) does not refer to the appointment to an office but to a person being selected to sit on the Tribunal. Nonetheless, it was common ground that the subsequent appointment of the member to the Council engaged the prohibition in s 165B(6) even in respect of part-heard proceedings. I express no view as to the correctness of that common ground.
5. The structure of s 165C is to confer a discretionary power, expressed in the passive, upon the Tribunal. Section 165B(5A) of the National Law provides that when constituted to make an ancillary decision or an interlocutory decision, the Tribunal is to be constituted by the Tribunal List Manager or the legally-qualified member; that is how (I infer) the Deputy President came to make the decision giving rise to this appeal. The power is available if a member other than the presiding member "vacates office" and one of two disjunctive preconditions as to timing is satisfied. It is clear as a matter of ordinary English that the preposition "before" applies distributively to both of those disjunctive limbs. On three occasions within the subsection there is reference to "an inquiry or appeal", and it will be necessary to return to this terminology.
6. There is an obvious difficulty between the two disjunctive limbs of the precondition to s 165C. On its natural reading, the power is available where a member other than the presiding member vacates office for any reason, either (1) before an inquiry or appeal is completed, or (2) before a decision is made "in respect" of an inquiry or appeal. But it seems passing strange to regard an inquiry or appeal to have been "completed" if decisions are still to be made in respect of that inquiry or appeal.
7. Mr Tsolis sought to rely upon this to support his construction that the "inquiry" was confined to the oral hearing, and distinct from the decision, consistently with the principle that a court construing a statute should strive to give meaning to every word in it: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [71]. But I cannot see how that assists. It leaves in place an equivalent anomaly, namely, that the words in the first disjunctive limb have no work to do, because if the vacation of office is before the inquiry, it will also always be before a decision. Thus the construction favoured by Mr Tsolis while giving work for the second limb to do does so at the price of leaving the first limb with no work to do. One difficulty with this provision is that no construction leaves work for each limb of the precondition to do, because the disjunction between "before completing an inquiry or appeal" and "before making a decision in respect of an inquiry or appeal" is not, so far as I can see, a true alternative. It follows that the principle that a construction should be favoured which gives all the words work to do cannot safely be relied on in construing the provision.

Context

1. I have so far focussed upon the text, but context is to be considered "in the first instance": see the authorities collected in Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [27]-[41] and [135]-[145]. The starting point is the reference to "an inquiry or appeal" which recurs in s 165C(1), (2) and (3).
2. The original obligations bearing upon the constitution of the Tribunal are found in s 165B, whose opening words are "[i]f a complaint is referred to the Tribunal or an application or appeal is made to the Tribunal under this Law". Subdivision 2 of Division 3 is headed "How complaints are to be dealt with" and makes provision for the power and in some cases the obligation to refer a complaint to the Tribunal. The obligation extends, in s 145D, to circumstances where a complaint if substantiated, may provide grounds for the suspension or cancellation of a registration. Secondly, Division 6 provides for appeals to the Tribunal from certain decisions, including decisions of a Committee (s 158) or the Council (s 159). Thirdly, Division 8 refers a right of review to the Tribunal in respect of various orders made by a Council, including in relation to a period of suspension or the imposition of conditions upon a person's registration. Those earlier divisions correspond with the threefold structure (complaint, application or appeal) of the opening words of s 165B(1).
3. However, s 165B(2) introduces different language, namely "when conducting an inquiry or hearing an appeal under this Law". The language of "inquiry or appeal" recurs in s 165B(7). It seems plain that the same language of "inquiry or appeal" in each of s 156B(2) and (7) and s 165C(1), (2) and (3) extends to all three ways in which proceedings are commenced in the Tribunal.
4. Thus an "inquiry" for the purposes of s 165C is the word used to denote dealing with a complaint. In order to answer the questions posed by this appeal, namely, what is encompassed by an "inquiry" and in particular when will it have been "completed", it is necessary to turn to the provisions governing how the Tribunal deals with complaints, because it was the reference of a complaint to the Tribunal that gave rise to the occasion for the exercise of the power under s 165C.
5. The legislation confers powers upon the Tribunal to caution, reprimand, counsel, fine, suspend or cancel the registration of registered health practitioners if "it finds the subject matter of a complaint against the practitioner … to have been proved" (s 149). There is an obligation in s 145 for all complaints to be dealt with expeditiously. There are also obligations, in s 165M, for the Tribunal to give a written statement of the decision to the parties and the Council, setting out findings on material questions of fact, referring to the evidence and giving reasons, and the default position under s 165M(4) is to make the statement of a decision publicly available if it is "in respect of a complaint that has been proved or admitted in whole or in part".
6. Section 165L confers an additional power of suspension in circumstances where a Tribunal has found the subject matter of a complaint to have been proved but "the complaint has not yet been finally disposed of".
7. Those provisions all tend to suggest that a complaint which has been referred to the Tribunal gives rise to an inquiry which will not be completed until a decision has been made whether to impose any and if so which of the various sanctions available to the Tribunal.
8. However, s 165I provides as follows: 165I Notice of time and place of inquiry or appeal [NSW] The Tribunal must give not less than 14 days' notice of an inquiry or appeal under this Law to each of the following - (a) the registered health practitioner or student the subject of the inquiry or appeal; (b) the Council for the health profession; (c) the National Board for the health profession; (d) for an inquiry into a complaint, the Commission; (e) the Chairperson of the relevant Committee, if appropriate.
9. Mr Tsolis relied upon this in support of a narrower construction to "inquiry or appeal", namely the hearing to be conducted before NCAT. It is true that it gives some support to his construction.

Absurdities and improbabilities

1. There are also absurdities and peculiarities which accompany the construction advanced by Mr Tsolis. One minor point is that if an inquiry was completed for the purpose of s 165C(1) either in May or September 2022, how is that reconciled with the amending orders made by the Tribunal on 18 November 2022? The amenability of the Tribunal's orders being varied under the slip rule, and indeed interlocutory orders being varied from time to time, including if there be a material change of circumstance, means that there may be some difficulty in determining when a particular "inquiry" has completed if the narrower approach favoured by Mr Tsolis be the correct construction.
2. A more substantial obstacle arises from the following considerations. As earlier noted order 7 of the Tribunal's orders was a listing for directions in relation to Stage 2. Subsequently, directions were made. If "inquiry" bears a narrow meaning in relation to Stage 1, it must bear a similarly narrow meaning in relation to Stage 2, and it seems quite plain that the "Stage 2" inquiry has not completed, nor has a decision been made in respect of it. Then when it is borne in mind that the power in s 165C is for "the" inquiry to be continued by the Tribunal constituted by three members, and the order giving rise to the present appeal is the order continuing the inquiry for the purposes of "Stage 2", there is no reason to doubt that both disjunctive limbs are satisfied. Perhaps this is not decisive, for it might be said that the "Stage 2" inquiry has not commenced (despite directions being made), and that the power in s 165C is not available despite the satisfaction of the express preconditions, because it is, by implication, only available once an inquiry has commenced. But it illustrates that Mr Tsolis' construction is accompanied by a deal of complexity which is not immediately apparent.

Authority

1. Parts of the reasons for judgment in Health Care Complaints Commission v Robinson if read in isolation supported either side. Mr Tsolis relied on passages at [40] ("On 14 September 2021, after an inquiry that proceeded over 10 days in 2020 and 2021, the Tribunal found the respondent guilty of unsatisfactory professional conduct", referring only to the "Stage 1" phase), and at [110] ("It may, as in this case, do so by deciding to adopt a two stage procedure. That does not necessarily entail a rigid division of the issues into (i) whether unsatisfactory professional conduct or professional misconduct is established (as Stage 1) followed by (ii) an inquiry into what consequential orders ought to be made (as Stage 2)"). The Commission pointed to what was said in [52] as to the "inquiry" involving four specified steps (which included the "Stage 1" and "Stage 2" hearings), and other references to "'Stage 1' of an inquiry" (for example at [77] and [82]) and "Stage 2 of the inquiry" (at [107] and [109]).
2. But all reasons for judgment must be read in context. As was pointed out in Anderson v Canaccord Genuity Financial Ltd (2023) 113 NSWLR 151; [2023] NSWCA 294 at [323], that is to say "nothing more and nothing less than what was said by the Judicial Committees of the Privy Council in Commonwealth of Australia v Bank of New South Wales (1949) 79 CLR 497 at 637-638; [1950] AC 235 at 308 and Mutual Life & Citizens' Assurance Company Ltd v Evatt (1970) 122 CLR 628 at 643; [1971] AC 793 at 809, namely, that all judicial reasoning must be understood secundum subjectam materiam (according to the subject matter)". No issue arose in Robinson as to whether a complaint referred to the Tribunal gave rise to a single inquiry, or more than one inquiry, still less as to the power in s 165C. The fact that the reasons for judgment contain sentences which, if read literally and isolation, appear to support each side's construction, illustrates nothing more than the fact that "inquiry" is a flexible English term, capable of bearing a range of meanings. Such statements, occurring in decisions where the issue did not arise, are not authority for any particular construction of the word.

Purpose

1. Finally, this Court is to prefer a construction which promotes the purpose or object of the statute: National Law, Sch 7 cl 7 (which displaces the corresponding s 33 of the Interpretation Act 1987 (NSW)). The evident purpose is to prevent the need to appoint a new non-legal member of the Tribunal in the event of death, incapacity or other vacation of position. That has benefits to the public, as well as to the health practitioner. It is a form of provision which has analogues in s 45AA of the Supreme Court Act 1970 (NSW) and s 21A of the Criminal Appeal Act 1912 (NSW). That purpose would be frustrated if Mr Tsolis' narrow construction were adopted. It would be promoted by the construction propounded by the Commission.

Conclusion and orders

1. I conclude that the Deputy President was correct, and that "inquiry" for the purposes of s 165C means, where a complaint has been referred to the Tribunal, the whole of the processes by which that complaint is adjudicated and resolved. Text, context and purpose support that construction. Where as here there have been findings of guilt but orders remain outstanding, the inquiry generated by the complaint has not been completed, and the power under s 165C is available.
2. Although there should be a grant of leave the appeal must be dismissed. There is no reason for costs not to follow the event.
3. Although it does not arise, it is as well to resolve one issue prominent in the parties' written and oral submissions, which is the effect of the extant determination of the Tribunal following the "Stage 1" hearing. It was submitted that "if the statutory task can no longer be completed, then the findings and the decisions ought to be terminated in the same way". Nothing in the National Law calls into question the legal consequences of that determination following the appointment (some nine months after the determination was made) of one of the members to the Council. The findings of unsatisfactory professional conduct and professional misconduct in accordance with the grounds propounded by the Commission represent the final determination of those issues by the specialist Tribunal authorised by Parliament to hear and determine them. There is nothing in the legislation to detract from the conclusion that those findings, indeed, expressed in terms of findings of "guilty of unsatisfactory professional conduct" and "guilty of professional misconduct" and publicly made available in accordance with s 165M(4) are anything other than final. As such, they give rise to estoppels binding both the Commission and Mr Tsolis. It is trite that the doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question between the parties, even if not a court: The Administration of the Territory of Papua and New Guinea v Daera Guber (1973) 130 CLR 353 at 453; [1973] HCA 59; Kuligowski v Metro Bus (2004) 220 CLR 363; [2004] HCA 34 at [22]. The authorities were reviewed by Mitchell JA in Chang v Legal Profession Complaints Committee (No 2) (2020) 56 WAR 263; [2020] WASCA 208 at [334]-[345], and the same conclusion was reached by Blow CJ, with Wood and Pearce JJ agreeing, in Motor Accidents Insurance Board v Motor Accidents Compensation Tribunal [2016] TASFC 6; 78 MVR 135 at [10]; see also Spratt v Perilya Broken Hill Ltd [2016] NSWCA 192 at [28]-[30].
4. Thus, even if Mr Tsolis' submissions were accepted, that would not set aside the findings of unsatisfactory professional conduct and professional misconduct, and still less would he be entitled to a "de novo" hearing (to use the word repeatedly invoked by his counsel) on those issues before a newly constituted Tribunal. Both he and the Commission are bound by the extant Stage 1 decision. (As it happens, they are also bound by such estoppels as flow from the judgment of the Supreme Court dismissing his appeal.)
5. Finally, mention should be made of proposed ground 2, which was that the decision of NCAT disclosed jurisdictional error in "failing to respond to substantial and clearly articulated arguments". The ground was developed by reference to one of the submissions on statutory construction. I would not accept that the Tribunal failed to respond to the argument. But, more importantly, the inquiry is utterly arid. Either the National Law has the construction for which Mr Tsolis contends, or it does not. If Mr Tsolis is wrong, it matters not a jot that the submission he advanced was not responded to, because the appeal nonetheless will be dismissed. If Mr Tsolis is right in his construction, once again it does not matter whether any of the (different) arguments before the Tribunal were addressed or not addressed. For those reasons, (which recall points made in Sydney Trains v Batshon [2021] NSWCA 143 at [35]-[37]), and as the Commission succinctly submitted, this proposed ground did not warrant a grant of leave because if there had been any error established it would not have been material.
6. For those reasons, I propose the following orders:
7. Grant leave to appeal in relation to grounds 1, 3 and 6 of the proposed Notice of Appeal, and refuse leave to appeal in respect of ground 2.
8. Direct Mr Tsolis to file a notice of appeal corresponding with the grant of leave within 7 days, and dispense with the requirement as to service.
9. Appeal dismissed.
10. Mr Tsolis to pay the Commission's costs of the proceedings in this Court.
11. KIRK JA: I agree with Leeming JA.
12. STERN JA: I agree with Leeming JA.

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