Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FDR v Medical Council of New South Wales [2021] NSWCATOD 168 Hearing dates: 20 August 2021 and by written submissions dated 25 August 2021 and 10 September 2021 Date of orders: 27 October 2021 Decision date: 27 October 2021 Jurisdiction: Occupational Division Before: The Hon Jennifer Boland AM, Deputy President Decision: 1. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) the name of the practitioner is anonymised. 2. Pursuant to s 64(1)(c) of the NCAT Act the reasons of the Tribunal published in 2015 and in 2018 are amended to redact from paragraphs set out in the Schedule to these reasons reference to certain spent criminal convictions of the practitioner. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW) Criminal Records Act 1991 (NSW) Health Practitioner Regulation National Law (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Konstantinidis v Council of the Law Society of New South Wales [2020] NSWCA 227 Lee v Medical Council of New South Wales [2012] NSWCA 80 Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group Inc & 3 Ors (2007) NSWLR 411; [2007] NSWCA 195 Woodhouse v Fitzgerald (No 2) [2021] NSWCA 132 Texts Cited: Nil Category: Consequential orders Parties: FDR (Applicant) Medical Council of New South Wales (Respondent) Representation: Solicitors: FDR (Self-represented) Health Professional Councils Authority (Respondent) File Number(s): 2017/00316431 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made restricting publication of the name of the applicant in these reasons. REASONS FOR DECISION The application 1. FDR is a health practitioner (as defined in the Health Practitioner Regulation National Law (NSW) (the National Law). In his present application the practitioner seeks that the Tribunal redacts from two published decisions all references to his spent criminal convictions. The practitioner relies on relevant provisions of the Criminal Records Act 1991 (NSW) (the CR Act) and the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) in support of his application. 2. Although the Medical Council of New South Wales (the Council) was the respondent to the earlier proceedings, as those proceedings are finalised, the solicitor for the Council advised me that the Council no longer considers it is a party to these proceedings, but appears on an amicus basis on this application. The Council does not oppose the practitioner's application, except in respect of the recording in the reasons of one criminal charge in respect of which the practitioner was found "not guilty". The basis of the objection to the redaction of reference to the charge is that this criminal charge was fundamental to the decision to remove the practitioner's name from the register. 3. In this unusual application an issue arose as to the Tribunal's power to make the orders sought. It was not in dispute that the commissions of the judges who presided on the earlier proceedings have expired, and in one case, the former judicial officer is no longer a member of the Tribunal. 4. Neither the practitioner, nor the Council, raised an objection to me determining this application in my capacity as List Manager as an ancillary order under s 165B (5A) of the National Law. In order to maintain the privacy of the practitioner and to give effect to the orders sought, I have determined that the practitioner's name should be anonymised. 5. For the reasons that follow, I have determined it is appropriate to make the redactions from the paragraphs in the decisions which deal with the spent convictions but not the one criminal charge referred to by the Council. Background 1. Over almost two decades ago the practitioner was the subject of disciplinary proceedings in a forerunner Tribunal of this Tribunal. The practitioner was found guilty of professional misconduct and his name was removed from the register. He was precluded from seeking a review of the Tribunal's orders for a period of 10 years. 2. In 2015 the practitioner's application for a re-instatement order was refused by the Tribunal. In 2018 a differently constituted Tribunal determined that, at that time, the practitioner was a fit and proper person to be re-instated to the register but subject to conditions on his registration. 3. On 14 July 2021 the practitioner sent an email to the Tribunal in which he stated: I have recently become aware that a decision involving me was published in contravention of section 16(2) of the Criminal Records Act. The section provides: However, a court before which evidence of a spent conviction is admitted must, in appropriate circumstances, take such steps as are reasonably available to it to prevent or minimise publication of that evidence. The decision in question is [the 2018 decision citation redacted] Please amend the published decision to remove all references to conditions that are spent as soon as practicable. 1. On 6 August 2021, at my request, the Registrar wrote to the practitioner and advised: 1. the Tribunal had not been able to refer the practitioner's request to the presiding Judge as his Honour had retired and was no longer a member of the Tribunal; 2. that the practitioner's request had been referred to me; 3. the practitioner was requested to provide a copy of his email to the Council as soon as practicable; 4. that the request would be considered in the next Health List; and 5. the practitioner was requested to advise the Tribunal in writing which offences referred to in the decision he asserted were "spent" in accordance with ss 8 and 9 of the CR Act, and which paragraphs of the decision he asserts it is appropriate to redact from the published decision. 1. I pause to note, at this point, the practitioner only sought redactions from the 2018 decision. However, at the directions hearing, the practitioner also sought redactions to a decision published in 2015. 2. On 23 August 2021 the practitioner's application was listed in the Health List the following directions were made: "1. [Name of practitioner] is to give to the Medical Council of New South Wales and to the Tribunal a document setting out details of his convictions which he asserts are spent, and the paragraphs mentioning those conditions in the disciplinary proceeding decisions published in 2015 and 2018 together with submissions on the jurisdiction of the Tribunal to make the redactions sought on or before 03 September 2021. 2. Medical Council of NSW is requested to assist the Tribunal by providing any submissions in response to [name of health professional] submissions on or before 10 September 2021. 3. It is noted that [practitioner's name's] application for redactions from the published decisions will be dealt with on the papers." The practitioner's submissions 1. The practitioner commenced his submissions by reference to the NCAT Act. He explained that s 63 "is a power to correct obvious errors" and notes that "'Obvious error' is not defined" so "takes its ordinary meaning". After referring to the "simple" examples set out in the legislation, the practitioner submits "that the decision-maker failed to have regard to the Criminal Records Act 1991 NSW and that is an 'obvious error' within the meaning of the section." 2. The practitioner goes on to submit that s 64 of the NCAT Act may be relied on because that section provides if the Tribunal is satisfied that "it is desirable to do so for any reason, it may make an order prohibiting or restricting publication of evidence given before the Tribunal" and that this is a "very broad discretionary power". 3. Under the heading "Spent Convictions" the practitioner asserts two convictions are not exempt under s 7(1) of the CR Act and are therefore capable of becoming spent. The practitioner then refers to two offences, one of which was a conviction of over 35 years ago involving a very small monetary sum and a charge in 2006 which was spent in 2016 (that is after the publication of the 2015 decision). However, the practitioner asserts this conviction could be redacted under s 64(1) of the NCAT Act if it was desirable to do so for any other reason. 4. Thereafter, the practitioner's submissions address specific paragraphs in the 2015 decision. He submits as the now spent conditions did not have any impact on the outcome of the proceedings (a fact indicated by the Tribunal in its reasons) that the discretion may be exercised to remove them. 5. The practitioner suggests a redaction to a further paragraph where the first spent conviction is again referred to and submits the sentence could be reworded so as not to lose its meaning without reference to the spent conviction. 6. The practitioner also submits redactions or rewording could be made to the recording of an expert's evidence relied on in the proceedings. 7. The submissions then deal with the 2018 decision and note that a number of paragraphs of that decision refer to the spent convictions which the practitioner submits could be deleted. 8. The practitioner refers to references in other paragraphs of the decision which recite background facts of the spent charges 9. The practitioner submits that the references to the spent charges are not integral to the decision and could be removed without the reasons being diminished in any way. The Medical Council Submissions 1. I commence by taking this opportunity to thank the Council for its participation in this application and for providing written submissions to assist the Tribunal. 2. The Council's submissions commence by addressing the power of the Tribunal to make the orders now sought. The submissions reject the practitioner's submission that the relevant source of power to make the correction sought is s 63 of the NCAT Act. It is submitted that the inclusion of prior criminal convictions was not "an obvious error" and thus it would not be appropriate to amend under that section. The submissions go on to point out any amendment under s 63 must be made by the "president or the member who presided at the proceedings". The submissions note "As the decision was made in 2015 and 2018 respectively time has passed which makes this no longer possible". 3. The submissions go on to advance the position that s 64 is the appropriate provision and that the Tribunal "would have the power under s 64(1)(c) of the CAT Act to amend the decisions in accordance with the request by the applicant" 4. In dealing with the spent convictions, the Council agrees that the two convictions "are capable of being spent as per s7(1) of the Record Act". Given the wording in the 2015 decision, the Council notes that in accordance with s 16(2) of the CR Act the publication of this information should be prevented or minimised. 5. The Council sets out a number of submissions as to why the criminal charge is not spent, and why it submits that it would not be appropriate to redact this information from the 2018 decision. The Council submits the criminal charge is integral to the Tribunal's reasoning. The CR Act provisions 1. It is appropriate at this point in these reasons that I set out the relevant provisions of the CR Act. 2. I commence my consideration by reference to the objects of the CR Act. Those objects are found in s 3 as follows: 3 Objects of this Act (1) The primary object of this Act is to implement a scheme to limit the effect of a person's conviction for a relatively minor offence if the person completes a period of crime-free behaviour. On completion of the period, the conviction is to be regarded as spent and, subject to some exceptions, is not to form part of the person's criminal history. (2) The Act also provides for the effect of the quashing of a conviction and the pardoning of an offence. (3) The Act also provides for a scheme to enable certain convictions for a number of decriminalised homosexual sexual conduct offences to become extinguished. 1. I pause to note that s 3(3) has no relevance to this application. 2. Section 7(1)-(3) of the CR Act provides: 7 Which convictions are capable of becoming spent? (1) All convictions are capable of becoming spent in accordance with this Act, except the following— (a) convictions for which a prison sentence of more than 6 months has been imposed, (b) convictions for sexual offences, (c) convictions imposed against bodies corporate, (d) convictions prescribed by the regulations. (2) A conviction may become spent in accordance with this Act whether it is a conviction for an offence against a law of New South Wales or a conviction for an offence against any other law. (3) A conviction may become spent in accordance with this Act whether it is a conviction imposed before, on or after the date of commencement of this section. 1. Section 8 of the CR Act provides that a conviction is spent on the expiration of the "crime free period". 2. Section 9 explains what is a "crime free period". It provides as follows: 9 What is the crime-free period for convictions of courts (other than the Children's Court)? (1) The crime-free period in the case of a conviction of a court (other than the Children's Court) is any period of not less than 10 consecutive years after the date of the person's conviction during which— (a) the person has not been convicted of an offence punishable by imprisonment, and (b) the person has not been in prison because of a conviction for any offence and has not been unlawfully at large. (2) The crime-free period may commence before the date of commencement of section 7. 1. Section 12 of the CR Act provides that a person whose conviction is spent is not obliged to disclose that conviction to any person, and the person's criminal history does not include the spent conviction. 2. Relevant to this application is s 16 of the CR Act. It is this provision that the practitioner relies on to ground his application for redactions to the two decisions published on NSW Caselaw. 3. Section 16 is as follows: 16 Proceedings before courts (1) Section 12 does not apply to proceedings before a court (including the giving of evidence) or the making of a decision by a court (including a decision concerning sentencing). (2) However, a court before which evidence of a spent conviction is admitted must, in appropriate circumstances, take such steps as are reasonably available to it to prevent or minimise publication of that evidence. (3) This Act does not affect any of the following provisions— • section 15 of the Children (Criminal Proceedings) Act 1987 • section 152 of the Criminal Procedure Act 1986 • Part 3.8 (Character) of Chapter 3 and section 178 (Convictions, acquittals and other judicial proceedings) of the Evidence Act 1995. 1. It is relevant to note that s 4 of the CR Act defines "court" to include "tribunal". The NCAT Act provisions 1. I commence by noting that ss 63 and 64 of the NCAT Act are both found in Part 4 of the Act which deals with "Practice and Procedure". Section 35 explains that all of the provisions of Part 4 are subject to the enabling legislation, in this case the National Law. 2. I pause to note that neither the practitioner nor the Council suggested that any provision of the National Law was relevant to this application or would exclude the operation of the NCAT Act (see Lee v Medical Council of New South Wales [2012] NSWCA 80). 3. Section 63 of the NCAT Act may be described as a statutory provision akin to the rule at common law known colloquially as the "slip rule". 4. Section 63 is in the following terms: 63 Power to correct errors in decisions of Tribunal (1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member. (2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct. (3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where— (a) there is an obvious clerical or typographical error in the text of the notice or statement, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect of form, or (d) there is an inconsistency between the stated decision and the stated reasons. 1. Section 64 of the NCAT Act provides as follows: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders— (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. Consideration Are the practice and procedure provisions of the NCAT Act available? 1. As noted above, I was not directed to any provision of the National Law which covers the field in this area or which is inconsistent with ss 63 and 64. 2. I commence by noting that cl 5(1)(f) of Schedule 5D of the National Law provides a Tribunal may in the exercise of its discretion admit a "certificate of the conviction of or the making of a criminal finding in respect of any persons". 3. I also note that cl 7(1)(b)(iv) of Schedule 5D of the National Law permits the Tribunal to direct that any specified evidence not be published. However, this clause, which is temporal in its drafting, provides a direction may be varied at any time by the person presiding in the proceedings. In this case, cl 7 is on its face not available as the persons presiding in the 2015 and the 2018 proceedings are either no longer member a member of the Tribunal or a "person presiding in proceedings". I note that cl 7(3) limits the making or variation of a direction to "before or during proceedings". 4. Before leaving my discussion of the National Law I note that an applicant for registration must disclose his or her criminal history as defined in s 5 (see s 77(3)(c)) and a "criminal history law" does not apply to the requirement to disclose the applicant's criminal history. Criminal history law provides that "spent or other convictions do not form part of a person's criminal history and prevents or does not require the disclosure of those convictions". 5. It is also relevant to note that, in considering whether a person is unsuitable to hold registration, the National law requires the board (or the Tribunal on appeal) to have regard to that individual's criminal history to the extent that it is relevant to the individual's capacity to practise the profession. 6. Thus it is understandable, absent any submission about spent convictions being made to the earlier Tribunals, that those Tribunals considered the practitioner's criminal history to determine whether that history had relevance to the practitioner's suitability to be re-instated to the register. 7. In summary, it is understandable why the practitioner's convictions were the subject of comment in the reasons albeit, other than the criminal charge, they were found, principally in the 2018 decision, substantially irrelevant to his fitness to practise at the time of the application. The lack of substantial relevance of the convictions to the re-instatement application supports the making of the orders now sought by the practitioner, provided the Tribunal has power to do so. Is s 63 of the NCAT Act the source of power to make the redactions sought? 1. In Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group Inc & 3 Ors (2007) NSWLR 411; [2007] NSWCA 195 Spigelman CJ discussed the inherent powers of the Supreme Court of New South Wales to make amendments pursuant to the common law "slip rule" and under rule 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCP rules). 2. Rule 36.17 of the UCP rules provides as follows: 36.17 Correction of judgment or order ("slip rule") (cf SCR Part 20, rule 10; DCR Part 17, rule 10; LCR Part 16, rule 10) If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error. 1. It is noteworthy that the rule, as does s 63(3)(b) of the NCAT Act, permits correction of a judgment or order if there is an error arising from an accidental slip or omission. 2. At [24] in Newmont Yandal the Chief Justice explained that it is important to focus attention "on the precise words of the rule, rather than to apply the terminology in the reasoning of prior case law because the position in New South Wales is different to what it has been in the past.. (see also Woodhouse v Fitzgerald (No 2) [2021] NSWCA 132). 3. At [26]-[27] his Honour explained: "26 Accordingly, this Court, unlike other courts which have the traditional form of slip rule, is required to approach the task of interpreting the relevant words, including "error", "accidental slip or omission" and "correct", in such a manner as to give effect to the overriding purpose. Such an interpretive requirement may lead to different results in New South Wales when compared with the past or with other jurisdictions. 27 Similarly, the Court must seek to give effect to the overriding purpose when exercising the discretion to correct an error or mistake in a judgment or order pursuant to r 36.17. In each respect this constitutes a substantive difference which requires the Court to treat prior case law and the case law from other jurisdictions with some care." 1. Applying the reasoning in Newmont Yandal I am satisfied that I must construe the words in s 63, not by regard to common law principles, but to give the words their normal meaning in the context of the objects of the NCAT Act. That is, was there an obvious error in the reasons for decision arising from an accidental slip or omission. 2. At this point in my reasons, I find I am unable to agree with the Council's submission that, because the judicial officers who presided at the earlier hearings are unavailable, there can be no remedy under s 63. The wording of the section clearly contemplates that the President has the power to amend a decision or order. The section does not confine the power to the President at the time of the decisions. 3. Notwithstanding that finding, I am not satisfied that the inclusion of the material about the convictions was an obvious error by reason of an accidental slip or omission. First, the 2016 conviction was not spent at the time the 2015 reasons were published. Secondly, non-publication of a spent conviction is not mandatory (see s 16(2) of the CR Act) and a court or tribunal is required to restrict publication if it is appropriate to do so. Accordingly, it was open to the two Tribunals to refer to the spent convictions in the context of the applications before them. Thirdly, the Tribunals were each required to consider whether the practitioner was, at the time of the respective hearings, a suitable person to be re-instated to the register. That examination included consideration of the practitioner's present circumstances and past history to determine which parts of that history had any relevance. 4. Accordingly, I do not accept the practitioner's submission that the reference to the prior convictions was an obvious error due to an accidental slip. Thus, I conclude the appropriate power to amend the decisions is not s 63 of the NCAT Act. If s 63 is not the source of power, can the redactions be made under s 64? 1. This provision of the NCAT Act has been discussed in a number of decisions of this Tribunal and the former Administrative Decisions Tribunal. The discretion to be exercised under the provision is wider than that exercised under the Court Suppression and Non-publication Orders Act 2010 (NSW) (see Konstantinidis v Council of the Law Society of New South Wales [2020] NSWCA 227 at [20]). 2. Subsection (1) of s 64 requires consideration of whether or not it is desirable to make the order sought. 3. I accept that if it is desirable to make an order such an order could be made pursuant to s 64(1)(c) of the NCAT Act. Is it appropriate to make redactions because the convictions are spent? 1. I commence my consideration of whether it is desirable to make the redactions sought by the practitioner to the two published decisions of the Tribunal by again referring to the objects of the CR Act. This legislation is beneficial legislation. It is designed to enable persons who have committed minor criminal offences, which have become spent, not to have to declare those offences. Such persons are to be afforded a "clean slate" in circumstances where they have not further offended. In many cases the spent offences will have occurred when the convicted person was young and often emotionally immature. 2. In this case, the first offence was a minor one occurring many years ago. It had, at its highest, minimal relevance to the consideration of the re-instatement application. A similar conclusion may be reached in respect of the second offence given the circumstances surrounding that offence. 3. I conclude that consistent with s 16(2) of the CR Act it is appropriate that the spent convictions should not be published in the 2015 and 2018 reasons. Thus, I am satisfied it is desirable that pursuant to s 64(1)(c) that the reasons should be redacted to remove, where appearing in the paragraphs nominated by the practitioner in his submissions (and which paragraphs are listed as a schedule to these reasons) references to the two spent convictions. I do not however find it is appropriate to "re-word" paragraphs of the decision as submitted by the practitioner or to amend the opinion expressed by the expert. Rather, the details of the convictions will be redacted from the reasons. 4. I agree with the submissions of the Council that the criminal charge that was directly relevant to the disciplinary proceedings and the facts that led to a finding of professional misconduct in 2003 should not be redacted. I note that the health practitioner did not seek redaction of reference to this charge in the 2015 and 2018 reasons. Orders 1. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) the name of the practitioner is anonymised. 2. Pursuant to s 64(1)(c) of the NCAT Act the reasons of the Tribunal published in 2015 and in 2018 are amended to redact from paragraphs set out in the Schedule to these reasons reference to certain spent criminal convictions of the practitioner. schedule [restricted] ********** 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 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: 27 October 2021