Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Wong [2022] NSWCATOD 59 Hearing dates: By written submissions dated 14 January 2022, 18 February 2022, 16 March 2022, 1 April 2022,8 April, 2022, 26 April 2022, and 10 May 2022. Date of orders: 10 June 2022 Decision date: 10 June 2022 Jurisdiction: Occupational Division Before: The Hon Jennifer Boland AM, Deputy President Decision: 1. The Application for miscellaneous matters of Chun Wah Wong filed on 28 January 2022 is dismissed. 2. The costs of the application are reserved to the substantive hearing. 3. The matter is listed for directions on 8 July 2022 at 12 noon Catchwords: HEALTH – Professional registration and discipline – application for summary dismissal of disciplinary proceedings Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law Poisons and Therapeutic Goods Act 1966 (NSW) Cases Cited: Caruana v Dental Council of NSW [2021] NSWCATOD 179 Crickett v Medical Council of NSW (No 2) [2015] NSWCATOD 115 Fox v Commissioner of Police [2016] NSWCATAD 77 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 Health Care Complaints Commission v Knowles [2021] NSWCATOD 49 Medical Council of New South Wales v Lee [2017] NSWCA 28 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 NG v Chinese Medicine Board of Australia [2017] NSWCATOD 36 Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 Re Filsell v Comcare [2009] 90 Windsor v Health Care Complaints Commission [2020] NSWCA 110 Texts Cited: None cited Category: Procedural rulings Parties: Health Care Complaints Commission (Applicant) Chun Wah Wong (Respondent) Representation: Counsel: N A Wooton (Applicant) Solicitors Health Care Complaints Commission (Applicant) Chun Wah Wong (self-represented) File Number(s): 2021/00363168 Publication restriction: Nil REASONS FOR DECISION Introduction 1. On 22 December 2021 the Health Care Complaints Commission (HCCC) filed an Application for disciplinary findings and orders with annexed complaint in the Tribunal (the substantive application). In its substantive application the HCCC seek orders under s 149C (1) (b) of the Health Practitioner Regulation National Law (NSW) (the National Law) that the registration of Mr Chun Wah Wong (the practitioner) be cancelled, and that a non-review period of the cancellation of two years be imposed. The HCCC filed an Amended Complaint on 11 March 2022. 2. The practitioner is a pharmacist. His registration was suspended by the Pharmacy Council of New South Wales (the Council) on 18 February 2020 following a hearing under s 150 of the National Law. No appeal against the Council's decision has been filed in the Tribunal by way of external appeal form naming the Council as the appropriate respondent, nor has any application been made to extend time to file an appeal against the Council's decision. 3. These reasons concern an interlocutory application brought by the practitioner in his Application for miscellaneous matters filed in the Tribunal on 28 January 2022. In that application the practitioner seeks four orders as follows: 1. Order to summarily dismiss the applicant's application pursuant to s 55 (1) (b) of NSW Civil and Administrative Tribunal Act 2013. 2. Order to set aside/revoke the Pharmacy Council's suspension of the respondent pursuant to section 159C (1) (b) of the Health Practitioner Regulation National Law (NSW). 3. Order HCCC to terminate this matter pursuant to section 39 (1) (e) of the Health Care Complaints Act 1993 & 4. Fourth order sought to grant leave for the representative (father) to represent the respondent, with attached affidavit explaining why the representation is appropriate. 1. In a Reply filed on 1 April 2022 the HCCC seeks orders that the practitioner's application for summary dismissal be refused. In the submissions filed on behalf of the HCCC, it is noted that the HCCC neither consents to or objects to the practitioner's application for Mr Wong to represent him, but makes submissions to assist the Tribunal. 2. For the reasons which follow, I have determined that the practitioner's Application for miscellaneous matters should be dismissed. Background 1. The following matters are extracted from the parties' submissions and/or the Amended Complaint. 2. The practitioner, according to the Amended Complaint, graduated from the University of Sydney with a Bachelor of Pharmacy degree in 2016 and he was first registered as a pharmacist in 2017. 3. At the time of the complaints, again according to the Amended Complaint, the pharmacist was employed on a part-time basis at a pharmacy on the central coast of New South Wales. 4. On 18 February 2020 the pharmacist's registration was suspended by the Council. No appeal against that decision was filed in the time provided in the National Law. 5. According to the Amended Complaint, the practitioner was requested by the Council to undergo an examination by Dr Anthony Samuels, psychiatrist, on 18 August 2020 but did not attend on the doctor. The Amended Complaint 1. The amended complaint asserts that the practitioner is guilty of unsatisfactory professional conduct under s 139B (1) (a) and (l) of the National Law. In broad terms Complaint One agitated against the practitioner is that he removed unwanted medications returned to the pharmacy from a container, took possession of the drugs and removed them from the pharmacy. 2. Complaint Two asserts that the practitioner provided misleading, inconsistent or untruthful evidence to the Council and the HCCC during the course of investigations. 3. Complaint Three asserts the conduct in Complaints One and Two are of sufficient seriousness to constitute professional misconduct as defined in s 139E of the National Law. 4. Complaint Four asserts the practitioner is not competent to practise as a pharmacist within the meaning of s 139(a) of the National Law. Particulars of this complaint include the practitioner's failure to attend the appointment with Dr Samuels, and the particulars of Complaints One and Two. It is further asserted that the practitioner is vulnerable to significant influence by his father in relation to his insight into his professional obligations and responses to them at named events (with the pharmacy on 23 January 2020, his father's email responses of 23 and 24 January 2020 to the pharmacy's decision to summarily dismiss the practitioner, and the father's repeated interjections at the s 150 proceedings). Procedural History 1. The substantive proceedings were first listed in the Health Directions List on 21 January 2022. That list was, as were all matters in the Tribunal at that time and to date, conducted with the parties participating by audio visual link (AVL). Mr Tai Wong (Mr Wong) the applicant's father appeared. He did not identify himself as the applicant's father but that circumstance was drawn to my attention by Mr S Fair, solicitor for the HCCC. On that day an order was made for any application for Mr Wong to represent his son was to be filed and served by 2 March 2022 and the matter was stood over for directions on 4 March 2022. 2. On 28 January 2022 the present application, signed by the practitioner, was filed. The address for service is noted as a post office box or (preferred) c/o email (Mr Wong's email address). The application is supported by an affidavit of Mr Wong dated the 25 January 2022. The jurat to the affidavit does not disclose whether the affidavit was sworn or affirmed. 3. On 4 March 2022 the matter was listed for directions and adjourned to 18 March 2022 when it was noted that the HCCC advised an Amended Complaint would be filed prior to the next directions hearing. 4. On 11 March 2022 the HCCC filed an Amended Complaint. 5. On 18 March 2022 directions were made for the HCCC to file a Reply to the practitioner's Application for Miscellaneous matters, a Reply to Mr Wong's application to appear for his son and submissions in respect of the practitioner's application for summary dismissal. The practitioner was directed to file any submissions in reply by 9 April 2022. The matter was listed for directions on 22 April 2022. 6. On 22 April 2022 orders were made for the Application for miscellaneous matters to be heard "on the papers". 7. On 2 May 2022 I made orders in chambers after the practitioner filed further material, without leave on 26 April 2020. The HCCC advised it did not oppose the practitioner relying on this further material provided it could serve short submissions in reply within 7 days. Order 3 of the orders made that day is as follows: It is ordered: (a) that the Health Care Complaints Commission may file short submissions in reply to Chun Wah Wong's submissions filed on 26 April 2022 in support of the interlocutory applications on or before 10 May 2022 (b) no further documents may be filed in respect of the interlocutory applications without leave of the Tribunal first being obtained. 1. The HCCC filed short submissions dated 10 May 2022. Notwithstanding Order 3 (b) of 2 May 2022, the practitioner filed further submissions dated 11 May 2022. The HCCC oppose the practitioner being able to rely on these submissions which were filed and served without leave to the Tribunal first being obtained. As I explain below, the further submissions repeat earlier submissions. I have not had regard to the submissions filed on behalf of the practitioner on 11 May 2022. The application for summary dismissal. Grounds relied on in support of application 1. The grounds set out in the application are as follows: The sought orders 1 & 2 & 3: The said "significance" of the 3 allegations per tribunal's chair on 21-1-2022 are in fact – - allegation 1 is due to misleading conduct of HCCC & its NSW registered lawyers - allegation 2 alleging respondent deceit is due to misleading of Pharmacy Council delegates as to Standard of Drug Destruction and their misleading as to "Placebo Effect" without contemporary & cultural considerations. - allegation 3 rest on fishing & maybe wilful purpose to abuse the statutory power to demand psychiatric/health check, breaching s 145E (2) of Health Practitioner Regulation National Law (NSW) and Common Law's fundamental common law rights, given the respondent had demonstrated very good mental capacity during the s150 hearing lasting for more than 3+ hours, by cross-examining back the Pharmacy Council delegates to eventually discover the delegates' deceit as to the Standard of Drug Destruction (Respondent's submission dated 14-1-2022 to NCAT is referred. The practitioner's submissions 1. The practitioner's submissions filed on 14 January 2022 are signed by and appear to have been drafted by Mr Wong. Part 1 of the submissions seeks summary dismissal on the grounds of:- Knowingly mislead No cause, allegation are based on substantially discounting body of evidence Frivolous and vexatious; No purpose, fishing and wilful purpose. 1. The submissions commence by noting an error in the Complaint as originally filed that the drug in question is a drug classified in Schedule 4, not Schedule 4D of the Poisons and Therapeutic Goods Act 1966 (NSW). I pause to note that this submission was made prior to the amendment of the Complaint. I accept that the submission was correct in this respect at the date of filing of the submission. 2. The gist of the submission in respect of Complaint One is to put in issue whether or not the pharmacist took the drugs (which he appears to dispute) and destroyed the drugs at the pharmacy although para 2.2 of the submissions appears to concede: the respondent opted for an alternative route for the final disposal of a very minute quantum of "Destructed Rubbish" equivalent to one capsule …in his pill container, during the interim using it as "Token" for self "Placebo Effect" being influenced by prior reading "Streams in the Dessert" (a practical daily advisory book derived from the Bible" which states that, on 21-1 any year, a "Token of Salvation" for double claim of blessing 1. The submissions refer to instances of asserted "placebo" effects. The submissions infer at 2.25 that the practitioner did not ingest the removed drug. 2. The submissions challenge the HCCC's particulars relied on in respect of Complaint Four and assert the HCCC has not satisfied the "hurdle" in meeting the requirement for psychiatric/health assessment under s 145E of the National Law. It is submitted that, as the appointment date was six months after the events at the pharmacy, such an examination could not be relevant to the practitioner's state of mind at the relevant time. It is also submitted that it is improper for the HCCC to have sought a health assessment during the COVID 19 pandemic because of the adverse effects the pandemic has had on many people's mental health. 3. Although purported to be submissions in respect of an appeal under s 159 of the National Law, the submissions assert any error about the storage of returned drugs should be sheeted to the complainant (the employer pharmacist), rather than the practitioner who was still under probation at the time of the incident. 4. The submissions conclude at 6.12 (I note two paragraphs are both shown as 6.12) that the allegations of unsatisfactory professional conduct, professional misconduct and incompetence and "not suitable person" are: Just revolved around the quantum of ONE capsule of Schedule 4 returned drug already destructed to "destructed and unusable" state, the whole body of the allegation is extra-ordinarily manifestly absurd and unreasonable. 1. It is submitted in these circumstances that the proceedings are frivolous. 2. Page 115 of the submission comprises a copy of an email with redactions made to the name of the addressee and sender. It reads: Jayne asked me to forward all information regarding Chun Wah Wong to you. All information I have so far is below/attached…. Chun and his father did admit to taking the medications numerous times during our termination meeting last Thursday. 1. The email has handwritten on it the words "Lie" and "? False" 2. The practitioner's submissions received on 18 February 2022 are signed by him C/o Mr Wong. The submissions attach a copy of a decision of the Queen's Bench for Saskatchewan in proceedings between the Director of Community Operations v SMM and MLM. The proceedings were proceedings for a community safety order by the applicant on the basis that the respondents had engaged in the use, consumption, sale, transfer or exchange of controlled substances as defined in the relevant Canadian legislation. The practitioner relies on this decision because the Judge emphasised the seriousness of the consequences for the respondents if the complaints were proved. 3. The practitioner's submissions received on 16 March 2022 point out the error in describing the drug in Complaint One as a Schedule 4D drug not a Schedule 4 drug and are critical of the lack of care by the HCCC having regard to the different legal consequences of the Schedules. The submissions assert the pharmacist destroyed the drugs in accordance with the USA Drug Disposal Act's standard. 4. In respect of Amended Complaint Two the submission records (in bold type and underlined) "Standard of Proof says 99.99925% probability that the respondent did not eat returned drug". 5. The submissions contain further challenges to the request to the practitioner to attend a Health Assessment noting correctly that the burden of proof in the disciplinary proceedings is that of the HCCC. It is submitted that the evidentiary basis for requiring a health check has not been established. 6. The submissions address the amended complaint asserting influence by Mr Wong as "intriguing". It is asserted that the email correspondence of Mr Wong is because of misleading and lies by the complainant's staff. 7. The submissions again rely on the Canadian decision to support the summary dismissal of the proceedings. 8. The practitioner or Mr Wong filed extensive submissions on 8 April 2022 in response to the HCCC's submissions I refer to these submissions after I refer to the HCCC's submissions. The HCCC submissions 1. The submissions commence noting that s 55 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) is subject to cl 12 of Schedule 5D of the National Law (see Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53; Health Care Complaints Commission v Knowles [2021] NSWCATOD 49). 2. It is noted that none of the three identified circumstances in cl 12 (1) (a) are established, and that the Tribunal could not be satisfied it is not in the public interest for the proceedings to continue noting the objects in s 3A of the National Law (the health and safety of the public must be the paramount consideration) and citing in support the decision in Crickett v Medical Council of NSW (No 2) [2015] NSWCATOD 115 at [56]. It is noted, at this stage, without the benefit of evidence and submissions, the Tribunal could not be satisfied that it is not in the public interest for the inquiry to continue. 3. It is pointed out that s 145D (5) of the National Law provides that the Council or the HCCC is not required to refer a complaint to the Tribunal if the Council or the HCCC think it is frivolous or vexatious. 4. The HCCC submissions also canvass, in the alternative, dismissal under s 55 (1) of the NCAT Act. The HCCC submit that I could not be satisfied that the complaint is vexatious and/or lacking in substance so as to engage the summary dismissal power. The submissions note that in NG v Chinese Medicine Board of Australia [2017] NSWCATOD 36 I emphasised that the power to dismiss proceedings summarily is one to be used sparingly citing General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. Reference is also made to the relevant principles in Fox v Commissioner of Police [2016] NSWCATAD 77 at [26] where the Appeal Panel said the words in s 55(1)(b) meant "lacking a legal foundation". The submissions recite that: The term "misconceived" represents a claim that does not "disclose a cause of action", while "lacking in substance" may be seen as referring to a claim where the defendant could obtain summary judgment: Alchin v Rail Corporation of New South Wales [2012] NSWADT 142 at [95]. 1. The submissions then quote from the decision of Jarvis DP in Re Filsell v Comcare [2009] AATA 90 at [33] where the learned Deputy President refers to the meaning to be attributed to the words "frivolous" and "vexatious". 2. The HCCC's submissions note that the practitioner's submissions direct attention to the first ground of the Amended Complaint, and submit that the practitioner's submissions "seek to argue that there was not in fact a 'drug' because the respondent had destroyed it prior to removing it from the pharmacy". The submissions also note that, as alleged in Complaint Two, the practitioner has given inconsistent evidence at various times as to whether the drug was in fact destroyed. The submissions state "The Tribunal is yet to hear evidence. It could not be satisfied that the respondent's arguments (that there is no 'drug' because it was destroyed) could be made good at the summary dismissal stage". 3. The submissions go on to canvas the remaining complaints including the provision of misleading, inconsistent or untruthful evidence to the Council and the HCCC, and the failure to undergo an examination under s 145E. It is submitted none of these complaints can be characterised as misconceived, lacking in substance or vexatious. 4. It is also submitted that, notwithstanding the submissions on behalf of the practitioner assert serious allegations against the HCCC, there is no evidence before the Tribunal that could substantiate these allegations. The submissions advance the position that the Tribunal could not be satisfied that the Complaint was brought for a collateral purpose. 5. It is submitted, if there is power to dismiss the amended complaint under s 55 of the NCAT Act, the power should not be exercised. 6. The submissions conclude by advancing the proposition that the amended complaint "cannot be characterised as being vexatious or lacking in substance. If available, the power to dismiss the amended complaint under s 55 of the NCAT Act should not be exercised". The practitioner's submissions in response. 1. The submissions refer to the Uniform Civil Procedure Rules. Those rules do not apply in this Tribunal but provide a useful background or commentary for the purpose of considering summary dismissal applications. 2. The submissions repeat earlier submissions about evidence supporting the practitioner's submission that he destroyed the drugs. 3. The submissions purport to offer an explanation of why the practitioner did not "disclose his personal secrecy of using the 'destructured rubbish' as a token for 'Placebo effect/Meditation Effect' because he reckoned this is irrelevant as there is 'no drug' after destruction". 4. It is also submitted that it was unnecessary for the practitioner to disclose his "personal secret" because of his privacy and the fact that, because the drug was destroyed, he was not required to report to any authority, "so there is no public interest". 5. The submissions seek to contrast the practitioner's responses, or lack thereof, at the Council hearing and the role played by Mr Wong at that hearing with that discussed in the matter of Windsor v Health Care Complaints Commission [2020] NSWCA 110. 6. The submissions conclude by recording that the practitioner cannot practise anymore because he has been suspended for more than two years. It is therefore submitted there is no public interest in continuing the proceedings. The submissions assert the practitioner had a "medical check up" on 23 January 2020 and on 28 January 2020 and was "found ok". The practitioner's submissions filed on 26 April 2022 . 1. These submissions again agitate the position that it is not in the public interest for the proceedings to continue because of the length of time of the practitioner's suspension. 2. The submissions repeat earlier submissions about destruction of the drug, evidence given at the s 150 proceedings, and asserted errors by the Council delegates. The submissions attach articles and the Canadian decision provided in earlier submission. HCCC submissions of 11 May 2022. 1. In the submissions filed on 11 May 2022 the HCCC state that the practitioner's submission challenging the evidence of a witness, who the practitioner or Mr Wong asserts "suffered long time anxiety and mental health problems", and did not fully observe what the practitioner was doing, is a factual issue in contention between the parties and therefor the power to dismiss either under cl 12 of Schedule 5D or alternatively s 55 (1)(b) is not available. 2. The submissions also note, by reference to decided cases and the National Law the effect of suspension (see s 176D). It is further noted that even if the practitioner is not registered the Tribunal has power to make disciplinary orders (see s 149C, s 149A). 3. The submissions also note that the practitioner provides no evidence to support the contention he has attended medical examinations, and further it is pointed out that his need to do so, demonstrates that there was apparently a need for him to undergo such examination. 4. Paras 14, 15 and 16 of the submissions respond to the submissions on behalf of the practitioner and note in each case the submissions raise factual issues in contention between the parties and accordingly that the power to summarily dismiss under either cl 12 of Schedule 5D or s 55 (1)(b) is not available. 5. The submissions, at para 17, advance the position that whether the Council had reasonable grounds to direct the practitioner to undergo an examination relate to the factual issue of whether the drug, the subject of the first complaint, was destroyed before it was taken home by the practitioner. 6. The submissions conclude asserting that the first attachments to the submission (the articles by the Hon Peter McClellan (the former Chief Judge at Common Law) support the conclusion that the factual matters should be determined at a final hearing. It is submitted that the Canadian decision has no relevance to this application. Relevant statutory provisions and law 1. This application is brought under s 55 (1) of the NCAT Act. This provision is as follows 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances— (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings. (2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers that there is a reasonable explanation for that failure.: 1. The HCCC submit, although not subject of concluded authority, that correct provision to determine termination of the proceedings is cl 12 of Schedule 5D. That clause provides as follows: 12 Certain complaints may not be heard [NSW] (1) A Committee or the Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal, if— (a) any of the following circumstances apply— (i) a complainant fails to comply with a requirement made of the complainant by the Committee or the Tribunal; (ii) the person about whom the complaint is made ceases to be a registered health practitioner or student; (iii) the complaint before the Committee or the Tribunal is withdrawn; and (b) in the opinion of the Committee or the Tribunal it is not in the public interest for the inquiry or appeal to continue. (2) A Committee or the Tribunal must not conduct or continue any inquiry or any appeal if the registered health practitioner or student concerned dies. (3) The power conferred on a Committee or the Tribunal by this clause may be exercised by the Chairperson of the Committee or the member of the Tribunal presiding and, if exercised by the Chairperson or member, is taken to have been exercised by the Committee or the Tribunal. 1. An application to summarily dismiss proceedings is defined as an interlocutory decision for the purposes of the NCAT Act (see s 4). Under the National Law an interlocutory application may be determined by the List Manager (see s 165B (5A). Thus, I am empowered to hear and determine this application. 2. An application under cl 12 of Schedule 5D of the National Law may be determined by the member of the Tribunal presiding, and if exercised by the member is taken to be exercised by the Tribunal. Consideration 1. I commence by noting that, if the appropriate provision to determine this application is cl 12 of Schedule 5D, there are cogent reasons why it is in the public interest for the matter to proceed to a final hearing. In reaching that conclusion, I have regard to the interpretation of "public interest" as explained by the NSW Court of Appeal in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 at [57]. 2. In reaching this conclusion, I take into account the objects of the National Law, particularly s 3A which provides in any exercise of any function under New South Wales provision of the National Law the protection of the health and safety of the public must be the paramount consideration. These disciplinary proceedings are brought under Part 8 of the National Law, a New South Wales provision. I note that the Council in the s 150 reasons expressed concerns about the practitioner's lack of knowledge, and the adverse impact that circumstance could have on the health and safety of the public. This aspect of the complaint can only be dealt with properly by appropriate testing of the evidence including cross examination of the practitioner at a final hearing. 3. In Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53, in determining an application to withdraw part-heard proceedings, I expressed the view that it appeared cl 12 of Schedule 5D was the relevant provision to apply to that application not s 55 of the NCAT Act. But I noted at [223] where the provisions of s 55 of the NCAT Act may be applicable. 4. In addition to my conclusion that it is not in the public interest for the proceedings to be terminated, for the reasons which follow, I have also determined, if s 55 is available, that the proceedings should not be dismissed under that provision. 5. I have already noted that, at the time of filing of the original complaint it contained an error in that it described the relevant drug as a Schedule 4D drug not as now set out in the Amended Complaint, a Schedule 4 drug. I also accept that the principles referred to in the articles attached to the practitioner's submissions are relevant to the substantive proceedings namely the standard of proof necessary to establish particulars set out in the complaint having regard to the serious consequences for the practitioner of adverse findings against him (See Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449). 6. Notwithstanding the error in the original complaint, I am satisfied there are serious factual disputes to be determined at the final hearing. These include whether the practitioner properly destroyed the drug, and took it home, and whether it was appropriate for him to do so. I am further satisfied that the Tribunal, at the substantive hearing, will be required to examine whether written responses from the practitioner to the Council and his oral evidence before the Council were inconsistent and/or misleading. 7. I accept the HCCC's submission that although allegations are raised in the submissions filed on behalf of the practitioner against both the Council, the HCCC and its lawyers that there is no evidence before the Tribunal to substantiate the allegations. I accept the submission that I could not be satisfied that the Complaint was brought for a collateral purpose. 8. Issues relating to the practitioner's competence to practise pharmacy are raised in the Amended Complaint. Given the Council's conclusions set out in the s 150 reasons, issues relating to competence could not be said to be frivolous or vexatious or otherwise lacking in substance. 9. Overall, I am satisfied that the practitioner has not demonstrated that the Amended Complaint is frivolous or vexatious or otherwise lacking in substance. Order 2 as sought in the application 1. It appears from this order that the practitioner wishes to appeal against his suspension by the Council following the s 150 proceedings. The current proceedings do not involve the Council as a respondent. 2. If the practitioner wishes to seek to appeal the Council's decision he must file an External Appeal seeking to appeal under s 159 of the National Law. As any proposed appeal is now significantly out of time, he must also seek an extension of time to appeal. 3. I am unable to deal with proposed order 2 in this application which is brought against the HCCC as respondent in disciplinary proceedings. Order 3 as sought in the application. 1. This order is framed as an order under s 39 (1) (e) of the Health Care Complaints Act 1993 (NSW). Section 39 provides as follows: 2. 39 What action is taken after an investigation? (1) At the end of the investigation of a complaint against a health practitioner, the Commission must do one or more of the following— (a) refer the complaint to the Director of Proceedings, (b) (Repealed) (c) refer the complaint to the appropriate professional council (if any) for consideration of the taking of action under the Health Practitioner Regulation National Law (NSW), such as the referral of the health practitioner for performance assessment or impairment assessment, (d) make comments to the health practitioner on the matter the subject of the complaint, (e) terminate the matter, (f) refer the matter the subject of the complaint to the Director of Public Prosecutions, (g) take action under section 41A. (1A) The Commission is not required to take action under this section if it reviews its assessment of the complaint and takes action under section 20A. (2) The Commission must consult with the appropriate professional council before deciding what action to take. (3) (Repealed) 1. This proposed order is, with respect to the practitioner, misconceived. He appears to challenge the decision to refer the complaint about the practitioner to the Director of Proceedings rather than terminating the matter. This is not a matter which falls within the Tribunal's jurisdiction under the National Law, nor is it a decision which is reviewable under the Administrative Decisions Review Act 1997 (NSW) (see s 41C of the Health Care Complaints Act). Application for Mr Wong to represent the practitioner The practitioner's submissions and Mr Wong's affidavit 1. Reliance is placed on the affidavit of Mr Wong to support his application In his affidavit Mr Wong seeks to represent the practitioner relying on s 167J (2) of the National Law. 2. Mr Wong refers to submissions dated 14 January 2022 as "mainly analysed and composed by me" which prove that he is much more able (presumably than the practitioner) to identify public interest concerns. He identifies the public interest concerns as: 1. Misleading conduct of the HCCC and its NSW registered lawyers; 2. Misleading conduct of the Pharmacy Council delegates as to Standard of Drug Destruction; 3. Abuse of power by public officers violating fundamental common law rights. 1. Mr Wong also deposed that he practised in his professional field objectively and fairly for around 40 years "including examining overseas government's programmes for public interest purpose, auditing overseas government subsidized Neo-Government Organization for public interest purpose, reviewing different banking activities of one of the largest international global bank for risk identification purpose. My professional trained unbiased mind & practice are able to assist this Tribunal to reach a fair and just decision for public interest purpose and real risk identification purpose". 2. Mr Wong deposed that he is the father of the practitioner who "knows the respondent's character" and this can help the Tribunal understand better for fairness of the respondent". 3. At para 2(d) Mr Wong deposes that he has walked "along all this complaint journey since its start" and that he is fully aware of "what's wrong and where's wrong with the Pharmacy Council & HCCC Investigations from legal point of view and factual point of view" . This he submits will assist the Tribunal to: Unravel the myth of conglomerate's neutrality, with a view to ensure the safety of the judiciary system which is important for everyone, other than with a view to administer this case justly and more efficiently. 1. Finally, Mr Wong deposed to the fact that the HCCC is represented by "NSW registered lawyers" and argues that because the practitioner has no legal background it is fair for him to have a representative "with some legal knowledge". Relevant Statutory provisions and law 1. The practitioner's father seeks the Tribunal's leave to represent him. He purports to rely on s 167J (2) of the National Law. It is apparent that the section of the National Law on which Mr Wong seeks to rely is s 165 J (2). 2. Section 165J of the National Law provides as follows: 165J Representation before Tribunal [NSW] (1) At an inquiry conducted or appeal heard under this Law by the Tribunal, the registered health practitioner or student and any complainant concerned are entitled to attend and to be represented by— (a) an Australian legal practitioner; or (b) with the leave of the member presiding, another adviser. (2) The Tribunal may grant leave for another person to appear (whether in person or by an Australian legal practitioner or another adviser) at an inquiry or appeal if the Tribunal is satisfied that it is appropriate for the person to appear. (3) This section does not prevent the Tribunal from proceeding in the absence of the registered health practitioner or student concerned, as long as the practitioner or student has been given notice of the inquiry or appeal. 1. In the submissions of the HCCC it is noted the question of whether s 165J applies when determining an interlocutory or ancillary application remains "unresolved" (see Caruana v Dental Council of NSW [2021] NSWCATOD 179). It is submitted that, if that section only applies to a final hearing, then s 45 of the NCAT Act is relevant as the National Law does not "cover the field) (see Medical Council of New South Wales v Lee [2017] NSWCA 28 at [45]) 2. I note that s 165J is found in Division 10 of the National Law which is headed "Constitution and proceedings of Tribunal". Section 165A provides: 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. 1. I accept the submission of counsel for the HCCC on this topic are relevant and appear to have a sound basis. Counsel's submissions advance the proposition that s 165J covers the field at a final hearing but leaves room for s 45 to operate in respect of interlocutory matters. I accept that s 165J (2) refers to "the member presiding" being the relevant decision maker. The member presiding is the member appointed to preside at the inquiry having the qualifications set out in s 165B of the National Law. Section 165B (5A) refers to an ancillary or interlocutory decision being heard by the List Manager or the member appointed under s 165B (2) (a) (see also the use of the expression "presiding member" in s 165C of National Law). 2. Section 45 of the NCAT Act provides as follows: 45 Representation of parties (1) A party to proceedings in the Tribunal— (a) has the carriage of the party's own case and is not entitled to be represented by any person, and (b) may be represented by another person only if the Tribunal grants leave— (i) for that person to represent the party, or (ii) in the case of representation by an Australian legal practitioner—for a particular or any Australian legal practitioner to represent the party. 1. The Civil and Administrative Tribunal Rules 2014 deal with representation of parties. Rules 31 and 32 provide as follows: 31 Application for leave to represent a party (1) An application by a person under section 45 of the Act for leave to represent a party to proceedings may be made orally or in writing at any stage in the proceedings. (2) In making an order granting leave to a person to represent a party to proceedings, the Tribunal may impose such conditions in relation to the representation as the Tribunal thinks fit. 32 Granting and revocation of leave for a person to represent party (1) In dealing with an application under section 45 of the Act for leave to be granted to a person (other than an Australian legal practitioner) to represent a party to proceedings, the Tribunal is to have regard to— (a) such of the following circumstances as it considers are relevant to the proceedings— (i) whether the proposed representative has sufficient knowledge of the issues in dispute to enable him or her to represent the applicant effectively before the Tribunal, (ii) whether the proposed representative has the ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings, (iii) whether the proposed representative is vested with sufficient authority to bind the party, and (b) any other circumstances that it considers relevant. (2) The Tribunal may revoke leave granted to a person to represent a party to proceedings only if the Tribunal is satisfied that— (a) the party no longer consents to the person representing the party, or (b) the person applied for leave to represent that party without the consent of the party, or (c) the person does not have the qualities referred to in subrule (1)(a)(i) or (ii) to act as the party's representative, or (d) the party is, or has become, incapable of instructing the representative, or (e) any other grounds are present that the Tribunal considers sufficient to justify the revocation. 33 Costs of representation may be disclosed Without limiting rule 31(2), the Tribunal may, as a condition of an order granting leave to a person (including an Australian legal practitioner) to represent a party to proceedings, require the person to disclose the estimated cost of representation by the person. 1. It is arguable however that, as a party is entitled under s 165J (2) (a) to legal representation as of right, and without leave of the Tribunal first being granted, that section is meant to cover the field and s 45 has no application. In other words, if s 165J (2) (a) only applies to a final hearing, then in every other circumstance, the Tribunal would need to grant leave to a legal representative to appear on behalf of a party under s 45 of the NCAT Act. 2. As there is no decided authority on this topic, and the legislative provisions may be considered ambiguous, it appears to me that I should consider Mr Wong's application to first appear for the practitioner under s 45 of the NCAT Act for any further interlocutory or procedural appearances and the member Presiding at the disciplinary proceedings may consider any application the practitioner may make at that time for his father to represent him. If I am wrong about the use of that section of the NCAT Act, I find the matters relevant to my consideration are equally applicable to an application under s 165J of the National Law. Consideration 1. I accept that the practitioner does not have legal representation. That is not an uncommon occurrence in disciplinary proceedings and not of itself determinative of the application. I accept that a person may well be assisted by a competent, objective and organised person at a final hearing to present his or her case and to question witnesses. However, there is no evidence before me that indicates that the practitioner is incapable of attending further directions hearings by AVL. Mr Wong's evidence is that the practitioner achieved a high academic standard in his last years of his pharmacy degree. This suggests the practitioner should well be able to file any material on which he seeks to rely at the final hearing and participate in directions hearings. 2. Mr Wong does not disclose the nature of his professional occupation. That is not determinative of the application. Of more significance are the allegations, without any evidentiary foundation, which he makes against the Council, the HCCC and its lawyers. That suggests a lack of balance, objectivity and fairness which traits are not likely to assist the practitioner or the Tribunal. 3. Of more significance however are the particulars now relied on by the HCCC which assert, in particular 4 of Complaint Four, that the practitioner is vulnerable to significant influence by his father in relation to his insight into his professional obligations and responses to them in three circumstances (during the pharmacy investigation, Mr Wong's emails to the pharmacy in response to their decision to summarily dismiss the practitioner, and repeated interjections in the s 150 proceedings). 4. I accept that Mr Wong may find himself in a position where he is a witness in the practitioner's case and liable to be required for cross-examination. On Mr Wong's own admission, he has been drafting documents on the practitioner's behalf. These matters indicate that Mr Wong may have difficulty in balancing duties to the Tribunal in a representative capacity, and the proper representation of the practitioner (see s 36 (3) of the NCAT Act). 5. I conclude for the reasons enunciated above, that Mr Wong's application to represent the practitioner in any interlocutory matter or directions hearing up to the substantive hearing should be refused. The practitioner may, if he deems it appropriate to do so, make application under s 165J of the National Law at the commencement of the hearing for leave for person to appear as Agent for him. orders 1. The Application for miscellaneous matters of Chun Wah Wong filed on 28 January 2022 is dismissed. 2. The costs of the application are reserved to the substantive hearing. 3. The matter is listed for directions on 8 July 2022 at 12 noon. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 10 June 2022