Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Clarke (No 2) [2022] NSWCATOD 96 Hearing dates: On the papers Date of orders: 29 August 2022 Decision date: 29 August 2022 Jurisdiction: Occupational Division Before: The Hon Jennifer Boland AM, Deputy President Decision: (1) The application to set aside the decision of 26 May 2022 is dismissed. (2) The application for Miscellaneous matters filed 18 July 2022 is dismissed. (3) The costs of the applications are reserved to be determined at the conclusion of the substantive proceedings. Catchwords: HEALTH – Professional registration and discipline – Complaints – set aside application of order dismissing application for summary dismissal – recusal application- application for referral of questions of law to the Supreme Court Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Civil and Administrative Regulation 2013 Cases Cited: Charisteas v Charisteas [2021] HCA 29 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Westbury v The Owners – Strata Plan No 64061 [2021] NSWCATEN 3 Texts Cited: Nil Category: Procedural rulings Parties: Health Care Complaints Commission (Applicant) Sharmain Daisy Clarke (Respondent) Representation: Counsel Ms A Petrie (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Sharmain Daisy Clarke (self-represented) File Number(s): 2021/00298698 Publication restriction: Nil REASONS FOR DECISION Introduction 1. On 15 October 2021 the Health Care Complaints Commission (HCCC) commenced proceedings in the Tribunal under Part 8 of the Health Practitioner Regulation National Law (NSW) (the National Law) against Sharmain Daisy Clarke (the practitioner). Those proceedings are listed for hearing for three days commencing on 31 October 2022. The practitioner opposes the orders sought by the HCCC including the cancellation of her registration. In short, it is her position that the proceedings are without foundation or merit. 2. On 13 December 2021 the practitioner filed an application for miscellaneous matters. Subsequently, in February 2022, Summonses were issued by the Registrar on the application of the HCCC and documents produced, and orders made for inspection. The practitioner opposed the material produced being relied on in the proceedings and sought that the Summonses be set aside. She also sought orders for the proceedings to be summarily dismissed. 3. On 26 May 2022 I published reasons for decision in which I dismissed the orders sought in the practitioner's interlocutory application and granted leave to the HCCC to rely on an amended Application for Disciplinary Findings and Orders. I pause here to note no leave was sought by the HCCC to amend the complaint annexed to the Application for disciplinary findings and orders. 4. On 27 May 2022 the practitioner sent an email to the Tribunal in which she asked the Tribunal to set aside, under reg 9 of the Civil and Administrative Tribunal Regulations (the regulations), the decision of 26 May 2022. The practitioner also sought to have the decision set aside under s 53(4) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) and an amendment made under the slip rule (s 63 NCAT Act). 5. In her email to the Tribunal dated 27 May 2022 the practitioner asserts that the Tribunal has not made an order for the HCCC to file their Amended application and to serve that application on the respondent. It is asserted a sealed amendment was served on the practitioner on 4 May 2022 in the absence of any order by the Tribunal. 6. The practitioner then makes reference to the Tribunal's guideline on internal appeals and notes that, as an alternative, where the parties' consent, the Tribunal can set aside a decision under reg 9 of the regulations. In the alternative, the practitioner seeks the setting aside of the decision under s 53(4) of the NCAT Act. 7. On 7 June 2022 the practitioner forwarded written submissions to the Tribunal seeking that I recuse myself for "for a hearing to be dealt with on the papers in accordance with orders made on 27 May 2022 for a directions hearing 17 June 2022". 8. On 10 June 2022 the practitioner filed an Application to set aside or vary Tribunal decision made 26 May 2022 (the first set aside application). 9. On 18 July 2022 the practitioner filed an Application for miscellaneous matters. The application seeks a number of orders. The orders sought again include an order for the decision of 26 May 2022 to be set aside (the second set aside application). I consider both of the applications below. 10. On 18 July 2022 the practitioner filed a document headed "Application made by the (practitioner) Sharmain Daisy Clarke in Miscellaneous Application filed 18.07.22 and Index of Materials Relied Upon". Annexed to that document is a copy of Amended Application for disciplinary findings and orders dated stamped 17 June 2022 filed by the HCCC. That Application discloses an amendment to order 1 of the orders sought by the HCCC namely that the practitioner's registration be cancelled pursuant to s 149C(1)(a) of the National Law, rather than as originally set out, under s 149C(1)(b). 11. On 17 August 2022 the HCCC filed a Reply to the practitioner's interlocutory application filed on 18 July 2022. The HCCC seek orders that the interlocutory application be dismissed, that the application be dealt with on the papers, and that the practitioner pay the HCCC's costs of an incidental to the proceedings. 12. I note that on 5 August 2022, when the parties appeared at a directions hearing, I recorded that, by consent, the application filed on 18 July 2022 would be dealt with on the papers. Background 1. It is necessary to understand the practitioner's present applications to again refer to limited relevant background matters. I repeat some of the factual matters set out in my reasons of 26 May 2022. 2. On 31 October 2021 the HCCC filed in the Tribunal an Application for disciplinary findings and orders with a complaint annexed. The application purports to seek orders for the cancellation of the practitioner's registration under s 149C(1)(b) of the National Law. That provision enables a cancellation order to be made if the Tribunal finds a practitioner guilty of professional misconduct. Under the heading "grounds for the application" it is asserted the practitioner has an impairment under s 144(d) and is not competent under s 144(c) in that she lacks the mental and physical capacity to practise as a nurse within the meaning of s 139(a) of the National Law. 3. The Complaint annexed to the Application in Complaint One particularises the impairment alleged under s 144 (d). Complaint Two relies on s 139(a) of the National Law. There is no allegation of professional misconduct by the practitioner. 4. At the hearing on 22 April 2022, I observed that s 149C(1)(b) of the National Law permits the Tribunal to cancel a practitioner's registration if the practitioner is found guilty of professional misconduct. Section 149C(1)(a) of the National Law permits the Tribunal to cancel a practitioner's registration if the practitioner is found not competent to practise the practitioner's profession. That error having been identified, orders were made for the HCCC to give to the Tribunal and to the practitioner a copy of any proposed Amended Application for disciplinary findings and orders by 6 May 2022. 5. On 4 May 2022 an Amended Application was provided to the Tribunal. The only amendment sought in the application was to amend s 149C(1)(b) to s 149C(1)(a). 6. On 26 May 2022 an order was made granting leave to the HCCC to rely on an Amended Application for disciplinary findings and orders. 7. On 17 June 2022 an Amended Application was filed by the HCCC in the Tribunal. It is in identical terms to the document filed on 4 May 2022. On 17 June 2022 orders were made for each party to file further material to prepare the matter for hearing and hearing dates were allocated. 8. On 5 August 2022 further orders were made in respect of the practitioner's interlocutory applications. The practitioner was directed to give to the HCCC any further material on which she sought to rely by 12 August 2022. The HCCC was directed to serve on the practitioner on or before 26 August 2022 a Reply to the Application for Miscellaneous matters filed on 18 July 2022 and any submissions. No submissions were received from the HCCC. 9. On 5 August 2022 further orders and directions were made in the substantive proceedings namely an order extending time for the HCCC to serve a report by Dr M Wright by 8 August 2022. The order requiring the practitioner to serve any further material on which she seeks to rely was extended to 26 August 2022. The first set aside application 1. In her first "set aside" application, the practitioner asserts she wants the orders made on 26 May 2022 set aside. In answer to the question "if you want to have the decision varied, what orders do you want the Tribunal to make?". The practitioner seeks, among other matters, to have the proceedings commenced by the HCCC on 15 October 2021 dismissed and no order made as to costs in respect of the interlocutory application. She also seeks that I make amendments to the decision under s 63 of the NCAT Act to correct obvious errors in the decision and that I be recused from these proceedings. 2. The application notes that an extension of time is sought as well as a stay of the original decision. 3. In answer to the question "Why were you absent when the Tribunal made the decision". The practitioner responds: The decision was made on 26 May 2022 on papers. Whether all relevant material was before the Tribunal Member in reaching the decision is questionable, otherwise. The HCCC was copied in an email dated 27 May 2022 in response to consent request to set aside the Decision reached on 26 May 2022. A further email was sent on 7 June 2022 and a voicemail message was left on 9.06.22 for the respondent acting on behalf of the HCCC. 1. Under the heading "Describe in summary the case (evidence and arguments) you would have put to the Tribunal if you had not been absent" the practitioner refers to a number of matters in the Occupational Division Guidelines Professional Disciplinary Matters. 2. In support of her application the practitioner has provided copies of Summons in the Supreme Court of New South Wales seeking leave to appeal the orders made on 26 May 2022. However, the documents provided are not sealed copies and it is not clear whether the Summons has in fact been filed in the Supreme Court. 3. On 17 June 2022 at a directions hearing, I made an order that the practitioner give to the HCCC and the Tribunal any further submissions limited to one page on which she sought to rely in support of the set aside application on or before 24 June 2022. The HCCC indicated that it did not consent to the set aside application. The regulations. 1. Regulation 9 of the regulations deals with setting aside a decision of the Tribunal. It provides as follows: 9 Additional power to set aside or vary decision determining proceedings In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances— (a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. Note— The following provisions of the Act are examples of provisions that expressly confer powers to set aside or vary decisions of the Tribunal— (a) section 45 (3) (which enables the Tribunal to revoke leave granted to a person to represent a party), (b) section 53 (4) (which confers a power on the Tribunal to set aside proceedings and decisions involving procedural irregularities resulting from a failure to comply with provisions of the Act or the procedural rules in relation to the commencement or conduct of proceedings), (c) section 63 (which confers a power on the President or a presiding member to correct obvious errors in decisions of the Tribunal), (d) section 64 (3) (which enables the Tribunal to vary or revoke a non-disclosure order made under section 64), (e) section 73 (3) (which enables the Tribunal to vacate or revoke an order with respect to contempt of the Tribunal). (2) The Tribunal may make an order under this clause of its own motion or on the application of a party. (3) Unless the Tribunal grants an extension under section 41 of the Act, an application for an order under this clause must be made within 7 days after the decision concerned was made. (4) Except where the parties have consented to the making of the order, the Tribunal may not make an order under this clause unless the Tribunal has first— (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (5) A party may not make an application for an order under this clause to set aside or vary a decision of the Tribunal if— (a) an internal appeal or appeal to a court against the decision has been lodged or determined, or (b) an application for a judicial review of the decision has been made or determined. (6) A party may not, without the leave of the Tribunal, make an application for an order under this clause to set aside or vary a decision of the Tribunal if the party has previously made an application under this clause to have the decision set aside or varied. (7) If the Tribunal sets aside a decision under this clause, it may also set aside any orders that it made consequent on the decision that has been set aside. Note— An example of such a consequent order may be an order for costs in the proceedings. (8) Proceedings for the purposes of this clause are prescribed for the purposes of section 50 (1) (d) of the Act. Note— A hearing is not required for proceedings that are prescribed for the purposes of section 50 (1) (d) of the Act. (9) This clause does not limit any power of the Tribunal to set aside, revoke or vary its interlocutory decisions or any other decisions that do not operate to determine proceedings. 1. The practitioner's application relying on reg 9 may be dealt with shortly. First, the HCCC do not consent to her application. Secondly, the application is made out of time, albeit I accept that the practitioner does offer an excuse for the delay. Thirdly, the matters were fully ventilated before me on 22 April 2022. As the orders from that day disclose the HCCC was directed to and did give to the practitioner a copy of the proposed Amended Application for Disciplinary Findings and Orders by 6 May 2022. The practitioner was afforded the opportunity to file material in opposition to the proposed amendment by 13 May 2022. Fourthly, the parties agreed the matter could be determined on the papers. 2. Thus, although the matter was determined "on the papers", that occurred after the parties had the opportunity to file material and to make submissions. Accordingly, neither reg 9 (1) or reg 9 (2) is satisfied in this matter and the regulations do not provide a basis to set aside the decision. 3. The practitioner also relies on s 53(4) of the NCAT Act. Section 53 provides as follows: 53 Amendments and irregularities (1) The Tribunal may, in any proceedings, make any amendments to any document (for example, an application or appeal) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice. (2) Any such amendment may be made— (a) at any stage of the proceedings, and (b) on such terms as the Tribunal thinks fit, but may only be made after giving notice to the party to whom the amendment relates. (3) If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise. (4) The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings. 1. The practitioner appears to rely on this provision on the basis that the substantive proceedings brought by the HCCC are misconceived and/or that the Tribunal's guidelines in disciplinary proceedings have not been followed. 2. In my reasons of 26 May 2022, I dealt with issues which require determination at the final hearing. I rely on and repeat my conclusions as to why the grounds for summary dismissal were not established. I do not find that it would be appropriate to set aside the decision of 26 May 2022 under s 53(4) on the basis the substantive proceedings are misconceived. The strength or otherwise of the HCCC's case will be determined at the final hearing. It is to be remembered that the HCCC bear the onus of establishing the two complaints agitated. 3. It is relevant to note the practitioner seeks in a bundle of documents filed on 10 June 2022, to rely on a typed written documents dated 9 June 2022. In the latter document she sets out her submissions in support of the set aside application. 4. I turn then to consider the issue of any unfairness to the practitioner caused by a departure from the guidelines. I now explain why I reject the proposition that the matters set out in the disciplinary proceeding guidelines provide a ground for dismissal of the application. 5. First, it is to be observed that the guideline is a document designed to provide information particularly to self-represented litigants. The Tribunal's guidelines, as distinct from its Procedural Directions, do not have the force of law. 6. Secondly, although the practitioner refers to a number of the paragraphs in the guideline, the practitioner's material highlights her disagreement with persons who have made complaints against her particularly the "regulators and co-regulators". I do not consider the practitioner's submissions in respect of the guidelines provide a basis to set aside the decision under s 53(4) of the NCAT Act. In reaching this conclusion I consider that, as far as practicable, given the interlocutory applications filed in this matter, the proceedings have generally been conducted in accordance with the guidelines. Both parties have been provided with appropriate time-frames in which to serve material to be relied on in the substantive proceedings. 7. I do not find any fact or evidence relied on by the practitioner which would enliven s 53(4) of the NCAT Act. In summary, I find there is no evidence which supports setting aside the decision of 26 May 2022. 8. In reaching this conclusion I acknowledge, that on 22 April 2022, on becoming aware that the original application sought cancellation of the practitioner's registration based on professional misconduct, when such conduct is not the basis of the complaint, the practitioner became, and is, upset and aggrieved by the obvious error in the document instituting the proceedings in the Tribunal. Her distress had a reasonable basis, and it is regrettable the error occurred. 9. However, I am satisfied that the practitioner is not now prejudiced in the proceedings. This is because the complaint itself has not been amended. The complaint is squarely focused on two discrete topics, namely, does the practitioner suffer an impairment as defined in s 5 of the National Law and is she competent to practise nursing? Further, the hearing of this matter is not until October 2022. The HCCC served all the material on which it seeks to rely on the practitioner on 17 December 2021 and re-served the material on 25 April 2022. Any further material relied on by the HCCC, being an expert report of Dr Murray Wright, psychiatrist was to be served by 8 August 2022. Thus, the practitioner has and will have more than ample time to deal with the real issues in dispute between the parties (see s3 (d) of the NCAT Act) which are and remain unchanged (impairment and not competent to practise). 10. Further, to allay any concerns of the practitioner I will amend the orders made on 26 May 2022 under the slip rule to include an order for the filing and serving of the Amended Complaint by 17 June 2022 and include a notation to the effect that this has occurred. Recusal application 1. I now consider the practitioner's submissions in which she asks that I recuse myself. In dealing with this application. I note that I am not the member allocated to hear the disciplinary proceedings in this matter rather I have, and am, dealing with interlocutory matters in my capacity as List Manager of the Health List. 2. In paragraph 4 of her submissions filed on 7 June 2022 the practitioner asserts that I: "reached a decision on 26 May 2022 on grounds susceptible to a fundamental error not to conduct "a systematic analysis" of the probative evidences relied upon by the Health Care Complaints Commission NSW to prosecute proceedings against Ms Clarke". 1. No submission is directed to any asserted actual or apprehended bias by me in hearing and determining the application. 2. The authorities relating to apprehended bias are referred to by the High Court of Australia in the decision of Charisteas v Charisteas [2021] HCA 29 at [11] as follows: 11 Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established[3], and they were not in dispute. The apprehension of bias principle is that "a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide"[4]. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal[5]. Its application requires two steps: first, "it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits"; and, second, there must be articulated a "logical connection" between that matter and the feared departure from the judge deciding the case on its merits[6]. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed[7] [foot-notes omitted]. 1. The practitioner fails to identify any conduct, because of which a fair minded lay observer may reasonably apprehend that I might not bring an impartial mind to the determination of the interlocutory application on either its legal and factual merits, nor does she identify a logical connection between any identified matter and the "feared departure" which could lead me to judge the cases other than on its merits. 2. If the practitioner asserts legal error in the interlocutory decision, then the correct remedy is for her to seek leave to appeal to the Supreme Court of New South Wales, and if leave is granted, to appeal the interlocutory decision. 3. I conclude the practitioner's assertion that I should be recused from hearing interlocutory matters in these proceedings because I did not conduct a systematic analysis of probative matters is without merit. The application for miscellaneous matters filed 18 July 2022 1. The practitioner seeks in her application filed 18 July 2022 an order as follows: Order requested by the respondent under CATA Sec. 28 (d) the enforcement jurisdiction of the Tribunal, under Sec 75, 76 & 77. The respondent requests the order under Section 73 (5) & (6) of the CATA 2013 that the Tribunal refers the HCCC to the Supreme Court of New South Wales for determinations of the actions in dispute. CATA 2013 Sec 38 (3) Despite subsections (2)-(a) the Tribunal must observe the rules of evidence in – (i) proceedings in exercise of its enforcement jurisdiction, and (ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction. An order is requested by the respondent for the judgments made on 26.5.2022 be set aside under CATA 2013 Sec. 53 Amendments and Irregularities (4) The Tribunal may however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings. The respondent requests an order made under Sec 54 (1 of the CATA 201 Reference of a Question of Law to the Supreme Court and refers to her email correspondence made 20.6.22 to NCATOD timed @ 3.34PM, 3.22PM, 11.48AM and 10.27AM. 1. The email correspondence received from the practitioner on 20 July 2022 discloses a time of 2.41pm and was sent by iPhone. Earlier emails received that day all refer to a Certificate iv Training and Assessment Course program. As noted above, other emails refer to proposed Supreme Court proceedings and the proposed joinder of the Nursing and Midwifery Council of New South Wales (the Council) as Second Defendant. 2. Under the heading "Grounds of the Application" the practitioner relies on the following: Harrassments and illegalities pertaining to an admission of a false psychiatric diagnosis Contempt in the Tribunal Dishonesty, false and misleading information The attempt to pervert the course of justice] Statutory Breaches under Health Care Complaints Act 1993 and the Health Practitioner Regulation National Law 86a Sustained Prejudices in the highest from the disclosure of fabricated, inflamed, false and inaccurate residential database established by the agency of the Department of Justice affecting Government Information Public Access Act 2009 nationally, under Division 3 Specific Exemptions from Principles, Sec 28 Other Exemptions. The practitioner's submissions 1. In her application form the practitioner appears to take issue with evidence relied on by the HCCC in the substantive proceedings and refers to the original proceedings which sought orders under s 149C(1)(b) of the National Law. 2. In advancing her submission that there is a question of law to be referred to the Supreme Court the practitioner asserts non-compliance with the Health Care Complaints Act 1993 (NSW). She asserts two statutory breaches as follows: What prevented the Applicant from exercising Sec 29A Conduct of Investigations (1) and sec 92A under the HCCC Act 1993 prior to making an application under s 149C (1) (b) taking the application at its highest? What prevented the Applicant from exercising sec 97 under the HCCA 1993 prior to making the application against the respondent under ss 149C (1) (b) 1. The practitioner identifies the purported questions of law to be referred to the Supreme Court. These include whether or not the HCCC complied with s 150(2) the National Law. She also asserts, as a relevant question for referral, is whether the HCCC has sufficiently satisfied the Tribunal in relation to evidence of the matters set out under s 144(d) (the impairment complaint). 2. The practitioner raises as further questions whether the Council complied with s 150D(1) of the National Law. She also raises matters relevant to the Council's obligations under s 150F and s 150FA. As a separate question, the practitioner raises whether or not the Council made a proper determination in not referring her to an Impaired Registrant's panel. I pause here to note that the Council are not a party to these proceedings. Accordingly, each of the matters referred to above are not relevant matters for consideration of referral to the Supreme Court. 3. The practitioner also identifies as a relevant question for referral this question: "has the applicant been subject to sustained prejudices, miscarriages of justice or a breach of natural justice from the conduct actioned by the applicant in its application made on 15.10.21?" 4. The practitioner also asserts that s 92A of the Health Care Complaints Act was potentially breached by the HCCC because the Application filed on 15 October 2021 in the Tribunal "superseded their client's (the Council's) originating letter dated 12.01.21 informing the respondent that a complaint was referred to the HCCC. 5. At para 8 of the submissions in support of the orders sought the practitioner asserts: On a point of Law, the respondent was subject to prejudice and a criminal intent in the highest, requesting the respondent to consent and attend a psychiatrist arranged by the applicant on 21.01.22 and 14.2.22, furthermore, the consent and attendance is pressed in unsealed folder or unorthodox materials received by the respondent on 14.07.22 timed at 2PM 1. As a basis for her contempt application, the practitioner relies on the filing by the applicant of an amendment to the application on 4 May 2022 but "denied attaching Complaints One and Two". She asserts a further contempt occurred by the filing of the amended Application on 17 June 2022 which was served on her on 20 June 2022. 2. Complaint is also made about the HCCC seeking an extension of time to serve material on 18 March 2022 on the basis that material sought pursuant to a Summons had not been received. 3. Complaint is also made about the fact the original proceedings sought cancellation of the practitioner's registration based on s 149C(1)(b) (professional misconduct). The HCCC reply and submissions 1. As noted above, the HCCC has, in accordance with the orders made on 5 August 2022, filed a Reply seeking dismissal of the practitioner's application for miscellaneous matters. No submissions were provided by the HCCC in respect of this application, which in many respects mirrors the practitioner's earlier application and in respect of which the HCCC did provide submissions. These submissions are referred to in my reasons of 26 May 2022 The contravention order sought 1. The practitioner relies on ss 75, 76 and 77 of the NCAT Act. I observe the following. Proceedings for a civil penalty may only be commenced in the Tribunal with the consent of the Minister or an officer authorised by the Minister (see Westbury v The Owners – Strata Plan No 64061 [2021] NSWCATEN 3) No such consent has been obtained. Further, even if the Minister's consent had been obtained, I am not satisfied on the evidence before me that there has been an offence against the NCAT Act or the National Law. At its highest, it appears the practitioner asserts, because the HCCC served an Amended Complaint (in fact a proposed Amended Complaint) on 4 May 2022 in compliance with the order to serve such a document by 6 May 2022, or because an Amended Complaint was filed on 17 June 2022 following the orders made on 26 May 2022 permitting the HCCC to rely on an amended complaint, there has been a contravention of an order of the Tribunal. 2. The practitioner has not established a breach of an order of the Tribunal Accordingly, I find no merit in proposed orders 1. Application to set aside the decision of 26 May 2022. 1. This application essentially repeats matters raised in the first set aside application. 2. I refer to and repeat my findings in respect of the earlier application which are apposite to this application. Referral to the Supreme Court on a question of law 1. In her first order sought the practitioner refers to the referral to the Supreme Court on a question of law, based on s 73(5) and (6) of the NCAT Act. Section 73 sections provide as follows: 73 Contempt of Tribunal (1) The Tribunal has, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal committed in the face of the Tribunal or in the hearing of the Tribunal, the same powers as the District Court has in those circumstances in relation to a contempt of the District Court. Note— Section 27(1) provides that, in the case of proceedings for contempt of the Tribunal, the Tribunal may be constituted by one or more members (being members who are the President or any other member who is a current or former NSW judicial officer). (2) A person is guilty of contempt of the Tribunal if the person does or omits to do any thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court unless the person establishes that there was a reasonable excuse for the act or omission. (3) Without limiting subsection (1), the Tribunal may vacate or revoke an order with respect to contempt of the Tribunal. (4) For the purposes of this section— (a) sections 199, 200 and 202 of the District Court Act 1973 apply to the Tribunal and any members constituting the Tribunal in the same way as they apply to the District Court and a Judge of the District Court, and (b) a reference in section 200 of that Act to the registrar of a proclaimed place is taken to be a reference to the principal registrar, and (c) section 201 of that Act applies to a ruling, order, direction or decision of the Tribunal under those provisions as so applied. Note— Section 201 of the District Court Act 1973 (as applied by this subsection) provides for appeals to the Supreme Court against contempt decisions of the Tribunal under this section. (5) Without limiting the powers of the Tribunal under this section, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal (whether committed in the face or hearing of the Tribunal or not), the Tribunal may refer the matter to the Supreme Court for determination. (6) The Supreme Court is to dispose of any matter referred to it under this section in the manner it considers appropriate. 1. A number of matters are relevant to the orders sought by the practitioner. First, it is not alleged that there has been a contempt committed in the face or hearing of the Tribunal. A contempt application is to be determined by the Tribunal as constituted under s 27 of the NCAT Act. The pre-requisites for referral to the Supreme Court of New South Wales are not established. 2. The practitioner in her final order sought relies on s 54 of the NCAT Act. Section 54 is in the following terms: 54 References of questions of law to Supreme Court (1) The Tribunal (including when constituted as an Appeal Panel) may, of its own motion or at the request of a party, refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court. (2) The Tribunal may refer a question of law under this section only if the President has consented in writing to the question being referred. (3) The Supreme Court has jurisdiction to hear and determine any question of law referred to it under this section, but may decline to exercise that jurisdiction if it considers it appropriate to do so. (4) If a question of law arising in proceedings has been referred to the Supreme Court under this section, the Tribunal is not— (a) to give a decision in the proceedings to which the question is relevant while the reference is pending, or (b) to proceed in a manner, or make a decision, that is inconsistent with the opinion of the Supreme Court on the question. (5) Subsection (4) extends to the Tribunal when constituted as an Appeal Panel that is determining an internal appeal from a decision of the Tribunal in proceedings before which a question of law has been referred by the Tribunal at first instance to the Supreme Court under this section. 1. As I have already noted, many of the matter raised as "questions of law" by the practitioner relate to actions by the Council. The Council is not a party to these proceedings. The other matters raised by the practitioner do not, in my view, raise a question of law requiring referral to the Supreme Court. The Appeal Panel of this Tribunal has identified, for the purpose of determining internal appeal, matters that constitute a question of law. The matters are summarised in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13]-[21]. In summary, matters identified as a question of law include: 1. A failure to give adequate reasons; 2. Whether the Tribunal has identified a wrong issue or asked the wrong question; 3. Whether a wrong principle of law has been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal has failed to take into account a mandatory consideration or failed to take into account a relevant consideration or took into account a relevant consideration; 6. Where there was no evidence to support a finding of fact; 7. Whether the decision was so unreasonable that no reasonable decision maker could have made it. 1. A question of law is sometimes difficult to identify if it raises a mixed question of law and facts. 2. Dealing with the practitioner's asserted questions of law (other than those which assert error by the Council) I find the practitioner's reliance on s 92A of the Health Care Complaints Act to be difficult to understand. That provision requires the HCCC to assess, investigate and if appropriate prosecute as quickly as practicable matters referred to it under s 149C of the National Law. According, to the practitioner the matter was referred to the HCCC on 12 January 2021 and proceedings commenced in October 2021. I accept that matters once referred should be investigated with diligence and proceedings brought in a timely manner. Prima facie, a period of some ten months does not appear unreasonable in the circumstances of this case. It does not raise a question of law to be determined by the Supreme Court. 3. The practitioner also relies on s 97 of the Heath Care Complaints Act. That provision is as follows: 7 Pending legal proceedings do not prevent exercise of certain functions The Commission, the Commissioner, the Registrar and a conciliator are not prevented from exercising any function concerning a matter merely because legal proceedings relating to the matter have been commenced. 1. I observe that compliance with s 97 is not mandatory. I do not consider the fact that the HCCC have not engaged in functions such as conciliation under Division 3 of Part 2 of the Health Care Complaints Act that a question of law is raised which requires determination by the Supreme Court. 2. I perceive the nub of the practitioner's application to refer a question of law to the Supreme Court is her view that the proceedings are without merit and/or that she has been denied procedural fairness by reason of the error in the HCCC seeking orders for cancellation of her registration under s 149C (1) (b) rather than s 149C (1) (c). 3. I have already concluded that, in my view, given the amendment now made to the Application, and noting in particular, that no allegation of professional misconduct is asserted in the two complaints, that there is no procedural unfairness to the practitioner. This is particularly so where the hearing is not to occur until October 2022 and she has the opportunity, as provided in the orders of 5 August 2022, to file material in reply to the material relied on by the HCCC. 4. As to the practitioner's assertions about the material served on her (twice) by the HCCC it is noteworthy that no material has been received into evidence in the proceedings and this will not occur until the hearing. It is relevant to note evidence which may be relied on by the HCCC includes any material produced pursuant to the Summonses which the practitioner sought to have set aside. The practitioner will have the opportunity to object to any material which is irrelevant to the proceedings. I take this opportunity to note that the Tribunal may inform itself as it thinks fit (see C2 of Schedule 5D of the National Law) 5. Accordingly, I am satisfied no proper question of law to be considered by the President for referral to the Supreme Court has been identified by the practitioner. ORDERS 1. The application to set aside the decision of 26 May 2022 is dismissed. 2. The application for Miscellaneous matters filed 18 July 2022 is dismissed. 3. The costs of the applications are reserved to be determined at the conclusion of the substantive proceedings. ********** 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: 29 August 2022