Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Health Care Complaints Commission v Hill [2022] NSWCA 270 Hearing dates: 11 October 2022 Date of orders: 15 December 2022 Decision date: 15 December 2022 Before: Ward P at [1]; Mitchelmore JA at [2]; Basten AJA at [9] Decision: (1) Grant the applicant Commission leave to appeal from the judgment in the Common Law Division delivered on 16 December 2021. (2) Allow the appeal and set aside orders 3, 4 and 5 made in the Common Law Division on 16 December 2021. (3) In place thereof: (a) Dismiss the amended summons. (b) Order that the plaintiff pay the first defendant's costs of the proceedings in the Division. (4) Order that the respondent pay the Commission's costs in this Court. Catchwords: OCCUPATIONS – health practitioners – misconduct and discipline – disciplinary proceedings – Director of Proceedings' decision to commence NCAT disciplinary proceedings – application alleging unsatisfactory professional conduct and professional misconduct – whether allegations of professional misconduct were legally unreasonable ADMINISTRATIVE LAW – reviewability – grounds of review – subject matter of power or decision – prosecutorial decision – whether Director of Proceedings' decision should be treated as final – statutory interpretation – prosecutorial powers largely immune from judicial review but subject to NCAT control – legislature did not intend Court to determine which applications may be considered by specialist tribunal – decision is non-justiciable ADMINISTRATIVE LAW – remedies – certiorari –decision to refer complaint had no effect on medical practitioner's legal rights – no power to make fact findings or affect registration – no relief in certiorari ADMINISTRATIVE LAW – remedies – discretionary factors – failure to make strike out application in NCAT – discretion to refuse relief Legislation Cited: Building and Construction Industries Security of Payment Act 1999 (NSW) Civil and Administrative Tribunal Act 2013 (NSW), Pt 4, ss 36, 38; Div 3, ss 55, 60; Sch 5, Pt 4, Div 3, cl 9 Health Care Complaints Act 1993 (NSW), ss 3A, 4, 7, 8, 9, 13, 19, 20, 23, 39, 40, 41; Pt 5, ss 75, 76, 80, 81, 90A, 90B, 90C, 93 Health Practitioner Regulation National Law (NSW), ss 3, 3A; Pt 8, s 139F; Part 8, Div 3, Subdiv 1, s 144B; Subdiv 2, ss 145C, 145D, 149; Sch 5D, cl 11 Commonwealth Constitution, Ch III Uniform Civil Procedure Rules 2005 (NSW), r 13.4 Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Barwick v Law Society of New South Wales [2000] HCA 2; 74 ALJR 419 Batistatos v Roads and Trafic Authority of NSW (2006) 226 CLR 256; [2006] HCA 27 Council of the Law Society of New South Wales v Levitt [2018] NSWCA 247 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; [2003] HCA 2 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 The King v Hickman; Ex parte Fox (1945) 70 CLR 598; [1945] HCA 53 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Adam Hill (Respondent) Representation: Counsel: K Richardson SC / M Pulsford (Applicant) A Moses SC / J Alderson / E Chan (Respondent) Solicitors: Nicole Lawless, Director of Proceedings (Applicant) HWL Ebsworth (Respondent) File Number(s): 2022/00009556 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2021] NSWSC 1645 Date of Decision: 16 December 2021 Before: Simpson AJ File Number(s): 2020/278826 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] The appellant, Dr Adam Hill, is an anaesthetist registered under the Health Practitioner Regulation National Law (NSW). In February 2019, the Medical Council NSW made a complaint against the appellant to the Health Care Complaints Commission ("the Commission"). The complaint alleged that, during a colonoscopy and rectal biopsy, the appellant accepted a surgeon's invitation to put on a glove and feel the patient's rectal tumour without the patient's consent. In July 2020, the Commission's Director of Proceedings filed an application for disciplinary findings and orders against the appellant in the NSW Civil and Administrative Tribunal ("the Tribunal"). The Commission alleged that the appellant was guilty of unsatisfactory professional conduct and professional misconduct. In September 2020, prior to the hearing of the complaint, the appellant commenced proceedings in the Common Law Division seeking to quash the Director's decision to prosecute the complaint. The primary judge made an order quashing the decision to prosecute the appellant for professional misconduct on the basis that it was legally unreasonable. However, the primary judge was not satisfied that the decision to prosecute for unsatisfactory professional conduct was legally unreasonable. The Commission appealed against the primary judge's decision. During the hearing, a question was raised about the jurisdiction being exercised by the primary judge and the jurisdiction of the Court on an appeal by way of rehearing. The parties were granted leave to file further written submissions on the issue. The primary issue on appeal was whether the Supreme Court had jurisdiction to review the Director of Proceedings' decision to commence disciplinary proceedings in the Tribunal on the ground of legal unreasonableness. The Court held (Basten AJA, Ward P and Mitchelmore JA agreeing), allowing the appeal: (1) To determine whether the Supreme Court has supervisory jurisdiction, the relevant question is whether the decision by the Director of Proceedings should be treated as "final" (in the sense of immune from review for errors of law). The Court must determine whether it was a purpose of the legislation that an act done in breach of the provision should be invalid", a question to be resolved by considering the text, context and purpose of the legislation: [37]-[38]. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4, applied. (2) Decisions by the Director of Proceedings are decisions to invoke the jurisdiction of a tribunal. The Tribunal exercises judicial functions in determining whether to suspend or cancel the registration of a medical practitioner. The Director of Proceedings exercises powers that are comparable with those of a prosecutor, which are largely immune from judicial review but always subject to the control of the court or tribunal in which proceedings are commenced. This leaves open the possibility that a decision may be invalid if made for a corrupt or improper purpose, or without compliance with mandatory preconditions: [39]-[41]. Health Practitioner Regulation National Law (NSW), ss 3A, 90A, 90B, 90C, 145C, 145D; Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 38, 55, 60, Sch 5, Pt 4, Div 3, cl 9, discussed. Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 applied. (3) The decision by the Director to commence disciplinary proceedings in the Tribunal was immune from judicial review on the ground of legal unreasonableness. The exercise of supervisory jurisdiction on this ground would require reviewing the material before the Director in light of the paramount consideration of protecting the health and safety of the public. Where the legislature has established a specialist tribunal to determine whether a health practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the circumstances in which it intended that a court should be able to review such a preliminary decision will be limited: [47], [51]-[53]. Health Practitioner Regulation National Law (NSW), s 3A, referred to. Barwick v Law Society of New South Wales [2000] HCA 2; 74 ALJR 419; Council of the Law Society of New South Wales v Levitt [2013] NSWCA 247, distinguished. (4) The decision by the Director to commence proceedings was either valid or it was not. There was no basis in judicial review to find that the decision was valid in so far as it characterised the misconduct in one way, but not in so far as it characterised misconduct in another: [54]. (5) The appellant could not claim relief in the nature of certiorari because the decision by the Director of Proceedings had no relevant effect on his legal rights. The Director of Proceedings did not make findings of fact nor interfere with the appellant's registration: [55]-[56]. Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44, applied. (6) In circumstances where the Tribunal had power to control any abuse of its purpose, the Court should refuse relief on the ground that the appellant failed to make an application in the Tribunal in relation to the alleged professional misconduct: [57]. Civil and Administrative Tribunal Act 2013 (NSW), s 55, discussed. JUDGMENT 1. WARD P: I agree with Basten AJA. 2. MITCHELMORE JA: I have had the advantage of reading in draft the reasons of Basten AJA. I agree with the orders his Honour proposes. In light of the detail of his Honour's reasons, I am able to express my conclusions briefly. 3. Section 90B(1) of the Health Care Complaints Act 1993 (NSW) confers particular functions on the Director of Proceedings of the Health Care Complaints Commission ("the Commission") "in relation to any complaint referred to the Director by the Commission". The word "complaint" is defined in s 4 of the Act, to mean, relevantly for present purposes, "a complaint made under this Act". A complaint may be made under the Act by any person (s 8) and it may be made, relevantly, concerning "the professional conduct of a health practitioner" (s 7(1)(a)). 4. The functions of the Director of Proceedings under the Health Care Complaints Act include determining "whether the complaint [being a complaint referred by the Commission] should be prosecuted before a disciplinary body and, if so, whether it should be prosecuted by the Commission or referred to another person or body for prosecution": s 90B(1)(a). If the Director determines that the complaint should be prosecuted before a disciplinary body by the Commission, a further function of the Director is "to prosecute the complaint before the disciplinary body": s 90B(1)(a1). 5. The relief that the primary judge granted in Order 3, which as Basten AJA notes at [11] was the operative order, did not relate to the Director's decision to prosecute the complaint per se. Rather, the relief related to the Director's characterisation of the conduct the subject of the complaint in the application to the NSW Civil and Administrative Tribunal ("Tribunal"); and only in so far as the Director characterised the complaint as involving professional misconduct. Having regard to the statutory context, and as the Commission submitted, that characterisation exercise was properly construed as forming part of the Director's exercise of the function in s 90B(1)(a1) of the Health Care Complaints Act, to prosecute the complaint. 6. Division 3 of Part 8 of the Health Practitioner Regulation National Law (NSW) ("National Law") makes detailed provision as to how complaints are to be dealt with under that Act. Relevantly for present purposes, as Basten AJA has pointed out, s 145C(1)(a) of the National Law provides, inter alia, that the Commission may refer a complaint to the Tribunal, with s 145D imposing a duty to do so in circumstances which reflect the Tribunal's disciplinary powers in Subdivision 6. Pursuant to s 149 of the National Law, the powers of the Tribunal for which that Subdivision makes provision may only be exercised if the Tribunal "finds the subject-matter of a complaint against the practitioner … to have been proved" (emphasis added) (subsection (a)) or the relevant health practitioner who is the subject of the complaint "admits to it in writing to the Tribunal" (subsection (b)). 7. The function of an order in the nature of certiorari is to remove the legal consequences, or purported legal consequences, of an exercise or purported exercise of power which has, at the date of the order, a discernible or apparent legal effect upon rights: Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [28] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ, citing Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580; [1992] HCA 10; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [25]; and Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159; [1996] HCA 44. Having made the decision to prosecute, the choices that the Director makes in exercising the prosecutorial function in s 90B(1)(a1) of the Health Care Complaints Act have no legal effect on the rights of the health practitioner – here, the respondent. The complaint remains just that – a complaint, pending determination by the Tribunal of whether or not "the subject-matter of [the] complaint … [has] been proved". A determination by the Tribunal in that regard is the outcome of the processes for which the Civil and Administrative Tribunal Act 2013 (NSW) makes provision, to which Basten AJA has referred below. 8. It follows that the primary judge erred in granting the relief in Order 3. I agree with the orders proposed by Basten AJA. 9. BASTEN AJA: On 9 July 2020, an officer known as the Director of Proceedings in the Health Care Complaints Commission ("the Commission") filed an application for disciplinary findings and orders in the NSW Civil and Administrative Tribunal ("the Tribunal"). The application annexed a "complaint" in relation to a medical practitioner, Dr Adam Mark Hill ("the practitioner"), being an anaesthetist registered under the Health Practitioner Regulation National Law (NSW) ("National Law"). 10. The matter has not proceeded in the Tribunal with the degree of expedition which would normally be required in accordance with the National Law. [1] Although there appears to be no order staying the proceedings, the parties have not sought to take steps in the Tribunal following the filing by the practitioner of a summons in the Common Law Division on 25 September 2020. The precise orders sought will be identified shortly, but their intended effect was to prevent the Commission maintaining the current proceeding before the Tribunal. Procedural background 1. The proceedings in the Common Law Division were heard by Simpson AJ over three days in March 2021. On 16 December 2021, judgment was delivered extending time within which to commence the proceedings, granting leave to the practitioner to file and rely on a proposed amended summons (not provided to the Court until after the completion of the hearing), and making the following operative order: "3. Quash the decision of the Health Care Complaints Commission to prosecute the plaintiff in the Civil and Administrative Tribunal of NSW for professional misconduct." The amended summons was otherwise dismissed. [2] 1. On 14 March 2022, the Commission filed a summons in this Court seeking leave to appeal. The draft notice of appeal sought to have the Court quash order 3 made in the Division and dismiss the practitioner's summons, with costs. The precise effect of order 3 made by the primary judge was the subject of debate in this Court. That difficulty may have been reflected in the imprecision of the sole ground of appeal, which read: "The primary judge erred in quashing the decision of the Director of Proceedings to allege, in disciplinary proceedings before the Civil and Administrative Tribunal under the Health Practitioner Regulation National Law (NSW), that the respondent was guilty of professional misconduct on the ground that the decision was legally unreasonable." 1. The proposed ground resolved one issue, namely the basis upon which, at least in the view of the Commission, the primary judge had quashed the decision. The submissions in this Court led to a discussion as to the statutory basis of the "decision" and the basis upon which the Supreme Court was empowered to intervene in the prosecution of disciplinary proceedings before the Tribunal. Although the latter question had arisen before the primary judge, it was not addressed in written submissions filed in this Court prior to the concurrent hearing of the application for leave to appeal and the appeal. As the issue raised a question of the jurisdiction being exercised by the primary judge and, consequently, the jurisdiction of this Court on an appeal by way of rehearing, the parties were granted leave to file further written submissions addressing that issue. The further submissions have been of considerable assistance to the Court and refined the nature of the jurisdictional issue. 2. The reasoning of the primary judge explaining order 3 was as follows: "168 I have come to the conclusion that the decision to prosecute the plaintiff for professional misconduct was legally unreasonable in the sense that it lacked an evident and intelligible justification. The conduct on which the Commission relies, as set out in the Application and Complaint, is not capable of constituting conduct that would justify suspension or cancellation of the plaintiff's registration. It is therefore not capable of constituting professional misconduct." 1. A finding that a decision was legally unreasonable is usually based upon an assessment of the factual material before the decision-maker when the impugned decision was made. If this Court were to conclude that the judge was in error in undertaking that assessment, it would be inappropriate for this Court to undertake the same task. Accordingly, the starting point of the consideration must be to address the jurisdictional issue. That requires attention to the statutory scheme under which disciplinary proceedings are brought against medical practitioners in this State. It also requires consideration of the principles governing the scope of the supervisory jurisdiction of this Court. Scope of supervisory jurisdiction Proceedings before the primary judge 1. Although there is no notice of contention seeking to rely upon grounds and forms of relief rejected by the primary judge, to appreciate the scope of the issues addressed in the judgment, it is convenient to set out the form of the orders sought by the practitioner in his further amended summons, which read as follows: "1 A declaration that the decision of the [Commission] to refer the complaint to the Director of Proceedings pursuant to s 39(1)(a) of the Health Care Complaints Act 1993 (NSW) is void and of no effect. 2 A declaration that the decision of the Director of Proceedings to prosecute the complaint against the [practitioner] in the NSW Civil and Administrative Tribunal … pursuant to s 90B(1) of the Health Care Complaints Act … is void and of no effect. 3 A declaration that the proceedings commenced on 9 July 2020 by the Defendant to prosecute the complaint against the [practitioner] in the Tribunal purportedly pursuant to s 90B(1) of the Health Care Complaints Act … is a nullity as the [Commission] had no power in law to commence proceedings in the Tribunal. 4 Further, or in the alternative to Prayer 3, a declaration that proceedings commenced on 9 July 2020 by the [Commission] to prosecute the complaint against the Plaintiff in the Tribunal purportedly pursuant to s 90B(1) of the Health Care Complaints Act … is a nullity as the Tribunal is not a 'disciplinary body' for the purposes of the Health Care Complaints Act …. 5 An order in the nature of certiorari quashing the decision of the [Commission] to refer the complaint to the Director of Proceedings pursuant to s 39(1)(a) of the Health Care Complaints Act …. 6 Or in the alternative to Prayer 5 an order in the nature of certiorari quashing the decision of the Director of Proceedings to prosecute the complaint against the plaintiff in the … Tribunal … pursuant to s 90B(1) of the Health Care Complaints Act …. 7 A permanent injunction restraining the [Commission] from taking any steps to continue the proceedings in the Tribunal." It may be noted that order 3 did not precisely follow the terms of the relief sought. Disciplinary proceedings – statutory scheme 1. As appears from the relief sought (set out in the preceding paragraph) the matters in issue concerned the scope of the powers of the Commission and its officers as provided by the Health Care Complaints Act 1993 (NSW). The Commission is established as a body corporate under Pt 5 of the Health Care Complaints Act: s 75(1). Section 75(3) provides that "[s]ubject to section 90B, the functions of the Commission are exercisable by the Commissioner." The Commission is identified as a statutory body representing the Crown: s 75(2). The Commissioner is appointed by the Governor: s 76(1). 2. The Commission has a range of functions, conferring on it a broad regulatory role in relation to the provision of health services. Section 3A(2) of the Act states that "[t]he Commission is an independent body with responsibility for dealing with complaints under this Act, with particular emphasis on the investigation and prosecution of serious complaints in consultation with relevant professional councils." Relevantly for present purposes, the functions include the following: 80 Functions of Commission (1) The Commission has the following functions— (a) to receive and deal under this Act with the following complaints— • complaints relating to the professional conduct of health practitioners • complaints relating to a relevant health organisation, including an alleged breach by a relevant health organisation of a code of conduct prescribed by the regulations made under section 100(1)(c) of the Public Health Act 2010 • complaints concerning a health service that affects, or is likely to affect, the clinical management or care of individual clients • complaints referred to it by a professional council under the Health Practitioner Regulation National Law (NSW), (b) to assess those complaints and, in appropriate cases, to investigate them, refer them for conciliation or deal with them under Division 9 of Part 2, (c) to make complaints concerning the professional conduct of health practitioners and to prosecute those complaints before the appropriate bodies, including professional councils, professional standards committees and tribunals, …. 1. Although the Commission is a statutory body representing the Crown, ministerial control is limited in the following respects: 81 Ministerial control The Commission is subject to the control and direction of the Minister, except in respect of the following— • the assessment of a complaint • the investigation of a complaint • the prosecution of disciplinary action against a person • the terms of any recommendation of the Commission • the contents of a report of the Commission, including the annual report. Making complaints 1. In the orders sought before the primary judge, the first challenge was directed to the decision of the Commission, following investigation of a complaint, to refer the "complaint" to the Director of Proceedings, pursuant to s 39(1)(a) of the Health Care Complaints Act. The term "complaint" is defined in s 4 to mean "a complaint made under this Act or a complaint made under another Act that is able to be dealt with by the Commission under this Act". 2. Pursuant to ss 7 and 8, a complaint may be made by any person, including a patient (referred to as a "client"), a health service provider or a representative of a patient. The complaint may concern the professional conduct of a health practitioner (s 7(1)(a)), and may be made by lodging the complaint in writing with the Commission: s 9(1). The Commissioner may also make a complaint, but only with respect to what may be broadly described as serious matters: s 8(2). The present case involved a complaint made to the Commission under the Health Care Complaints Act. The power to make complaints is conferred, not only by the Health Care Complaints Act, but also by the National Law, Pt 8, Div 3, Subdiv 1. In particular, s 144B(2) of the National Law provides that a complaint may be made by "a Council" which includes the Medical Council of New South Wales. 3. Although it is commonplace for patients to complain directly to the Commission, that was not what happened in the present case. The complaint before the Commission was made by the Medical Director of the Medical Council of New South Wales and thus came from the Medical Council. The complaint made by the Medical Council was dated 11 February 2019 and enclosed a letter from the Chief Executive Officer of the Mater Hospital in North Sydney. That letter, dated 7 December 2018, was addressed to a colorectal surgeon, terminating his accreditation at Mater Hospital. The matters raised in the letter involved the surgeon's role in inviting the practitioner, being the anaesthetist engaged in a procedure at the Hospital, to put on a glove and feel the patient's rectal tumour. The practitioner did so and the surgeon took a photo on his mobile phone of the anaesthetist undertaking the examination and said he would send it to the practitioner's anaesthetic colleagues. The Medical Council considered that the letter revealed conduct on the part of the practitioner which caused concern. The documents were sent by the Commission to the practitioner (the anaesthetist referred to in the letter), seeking a written response. 4. Upon receipt of a complaint, the Commission is required to assess it: Health Care Complaints Act, s 19(1). The purpose of assessment is to decide whether the complaint should be investigated, or some other step taken: s 20(1). As part of its assessment, the Commission is to identify "the specific allegations comprising the complaint" and the person whose conduct is the subject of the complaint: s 20(2). The Commission is obliged to investigate a complaint if the Medical Council be of the opinion that it should be investigated: s 23(1)(a). Perhaps curiously, the Commission is also obliged to investigate the complaint if it (the Commission) is of the opinion that the complaint should be investigated: s 13(1). In any event, the complaint was investigated and there is no challenge to the action of the Commission in taking that course. 5. On completion of an investigation, the Commission must do one of a number of things; it may (i) refer the complaint to the Director of Proceedings; (ii) refer it to the relevant professional council; (iii) make comments to the practitioner or (iv) terminate the matter: s 39(1). If it proposes to refer the complaint to the Director of Proceedings, "it must first inform the health practitioner of the substance of the grounds for its proposed action and give the health practitioner an opportunity to make submissions": s 40(1). Having complied with ss 39 and 40, it must notify the parties and the Council in writing of the results of the investigation, the action taken under s 39 and the reasons for taking that action: s 41(1). Functions of Director of Proceedings 1. The Director of Proceedings is an office to which the Commission is obliged to appoint a member of its staff: Health Care Complaints Act, s 90A. The functions of the Director include the prosecution of complaints before a disciplinary body. Relevant matters to be taken into account in deciding whether to prosecute a complaint are prescribed in s 90C. It is the interplay between these provisions and specific aspects of the National Law which lie at the heart of the practitioner's case. The relevant parts of these provisions should be set out: 90B Functions of Director of Proceedings (1) The following functions of the Commission are to be exercised only by the Director of Proceedings in relation to any complaint referred to the Director by the Commission— (a) to determine whether the complaint should be prosecuted before a disciplinary body and, if so, whether it should be prosecuted by the Commission or referred to another person or body for prosecution, (a1) if the Director determines that the complaint should be prosecuted before a disciplinary body by the Commission, to prosecute the complaint before the disciplinary body, (b) to intervene in any proceedings that may be taken before a disciplinary body in relation to the complaint. (2) In addition, the Director of Proceedings has any other functions conferred or imposed on the Director by or under this or any other Act. (2A) Without limiting subsection (2), the Director of Proceedings may exercise any other functions conferred or imposed on the Commission by another Act and delegated to the Director under section 84. (3) The Director of Proceedings— (a) may at any time consult with a professional council in relation to the exercise of any of the Director's functions, and (b) must consult with the appropriate professional council (if any) before determining whether or not a complaint should be prosecuted before a disciplinary body. (3A) If the Director determines that a complaint should not be prosecuted before a disciplinary body, the Director may refer the complaint back to the Commission for action to be taken under section 39(1)(c)–(g). … 90C Criteria relevant to determinations of Director of Proceedings (1) The Director of Proceedings is to take into account the following matters when making a determination as to whether or not a complaint should be prosecuted before a disciplinary body— (a) the protection of the health and safety of the public, (b) the seriousness of the alleged conduct the subject of the complaint, (c) the likelihood of proving the alleged conduct, (d) any submissions made under section 40 by the health practitioner concerned. 1. Although s 90B(1) purports to describe "functions" of the Commission to be exercised only by the Director, it effectively identifies powers and obligations of the Director. One such power is to decide whether to prosecute; another is to conduct a prosecution. The decision to prosecute is not confined by any express constraints as to the circumstances in which a complaint should be prosecuted. There are mandatory considerations identified in s 90C(1), but each involves an evaluative judgment of a kind appropriately conferred on a senior professional officer of an authority. The primary judge rejected grounds in the further amended summons which alleged a failure to take account of mandatory considerations, so that it is not necessary to address further the scope and operation of s 90C(1). 2. In one sense, s 90B(1) is silent as to how a complaint is prosecuted. However, at least by implication, it provides authority for the Director, having determined that the complaint should be prosecuted before the Tribunal by the Commission, to take the necessary steps to commence proceedings in the Tribunal. The practitioner submitted that the power conferred by s 90B(1)(a1) was contingent upon a valid determination under par (a). In other words, unless the determination to prosecute the complaint in the Tribunal had been validly made, the Director had no power to take any steps in the Tribunal. That proposition was not reflected in the order made by the primary judge. 3. The procedures discussed so far are also the subject of provisions in the National Law. For present purposes it is sufficient to refer to the sections dealing with the courses available to the Commission. Those provisions are as follows: 145C Courses of action available to the Commission on complaint [NSW] (1) The following courses of action are available to the Commission in respect of a complaint made to the Commission, or that the Commission has decided to make, about a registered health practitioner or student— (a) the Commission may refer the complaint to the Council for the health profession in which the practitioner or student is registered or, after consultation with a Council, to a Committee or the Tribunal; (b) the Commission may refer the complaint for conciliation or deal with the complaint under Division 9 of Part 2 of the Health Care Complaints Act 1993; (c) the Commission may refer the complaint to another entity, including, for example, a National Board; (d) the Commission may determine that no further action should be taken in respect of the complaint; (e) the Commission may take any other action that it can take under the Health Care Complaints Act 1993. (2) If the Commission refers a complaint to a Committee or the Tribunal, the Commission must inform the Council accordingly. 145D Serious complaints must be referred to Tribunal [NSW] (1) Both a Council for a health profession and the Commission are under a duty to refer a complaint to the Tribunal if, at any time, either forms the opinion that it may, if substantiated, provide grounds for the suspension or cancellation of a registered health practitioner's or student's registration. …. 1. There are differences between the provisions of the Health Care Complaints Act and those of the National Law on the same topics. For example, the course available to the Commission under s 145C is not in terms constrained by the mandatory considerations which arise under s 90C of the Health Care Complaints Act. Further, s 145D(1) imposes an obligation to refer a complaint to the Tribunal upon the formation of an opinion that it "may", if substantiated, provide grounds for suspension or cancellation of a registration. These provisions thus confer an unrestrained power (subject to the usual limitations, such as improper purpose) coupled with an obligation where the Commission is of a particular opinion. 2. The differing legislative provisions are to be read harmoniously, so far as possible. Where inconsistency remains, s 93 of the Health Care Complaints Act states that that Act prevails over the National Law to the extent of the inconsistency. Powers of the Tribunal 1. Although the practitioner was adamant that his challenge to the decision of the Director to prosecute the complaint in the Tribunal was one to which the powers and functions of the Tribunal were irrelevant, that submission cannot be accepted. For example, to conclude that a decision to commence proceedings was legally unreasonable would be tantamount to saying it was unsupportable on the evidence or other relevant material, and thus constituted an abuse of the process of the Tribunal. If the Tribunal has power to deal with abuse of its own processes by staying or dismissing the proceeding, there would be a basis for inferring that the decision of the prosecutor was not reviewable on that ground. Alternatively, it would be possible to contend that the court should not exercise functions of judicial review until the Tribunal had had an opportunity to consider that matter for itself. The decision of the Tribunal might then be open to appeal or review. In that situation, judicial review might be refused on a discretionary basis, as when a plaintiff seeks to invoke the supervisory jurisdiction in disregard of a right of appeal. 2. Provisions governing practice and procedure in the Tribunal are found in Pt 4 of the Civil and Administrative Tribunal Act 2013 (NSW) ("Tribunal Act"). Those principles include the "guiding principle" for the Act and rules, namely "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 36(1). Section 38 frees the Tribunal from any suggestion it might be bound by the rules of evidence and allows it to "inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice": s 38(2). It is also required to act "with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms": s 38(4). Importantly for present purposes, s 55 provides: 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. Section 55(1)(b) permits the Tribunal to summarily dismiss proceedings where there is no reasonable prospect of success, or where there is otherwise an abuse of process. [3] The Tribunal also has power to award costs in circumstances where one party has conducted proceedings in a way that unnecessarily disadvantaged another party, or has been responsible for prolonging unreasonably the time taken to complete the proceeding: s 60(3). 2. There are further matters governing the procedures of the Tribunal in relation to health practitioners, to be found in Sch 5, Pt 4, Div 3 of the Tribunal Act. Importantly, the Tribunal is to observe the objectives and principles referred to in ss 3 and 3A of the National Law: cl 9(1). Section 3A of the National Law identifies "the protection of the health and safety of the public" as the "paramount consideration" in exercising functions under a New South Wales provision, a matter which binds both the Commission and the Tribunal. 3. It is apparent from these provisions that the Tribunal has power to dismiss or not proceed with the hearing of a complaint if it considers that the lodging of the complaint or its prosecution before the Tribunal is an abuse of process. 4. A second matter of potential significance is the wider operation given to the notion of a "complaint" in a number of provisions of the National Law, including ss 145C and 145D set out above. Thus, s 139F states that in those (and other) provisions "a reference to a complaint includes a reference to a matter arising out of the investigation of a complaint in accordance with this Law or another Act". Role of judicial review 1. The activities of the Commission do not enjoy the protection of a privative provision. However, even if they did, that would merely be a factor to be taken into account in resolving any apparent inconsistency between the conferral of limited statutory powers and the protection of the decision-maker from judicial review of the exercise of those powers. [4] The question of statutory construction may be more broadly formulated, as in Project Blue Sky Inc v Australian Broadcasting Authority, [5] as "whether it was a purpose of the legislation that an act done in breach of the provision should be invalid." The joint reasons in Project Blue Sky further stated at [95]: "When a legislative provision directs that a power or function be carried out in accordance with matters of policy, ordinarily the better conclusion is that the direction goes to the administration of a power or function rather than to its validity." 1. Such considerations are essentially contextual. As the High Court explained in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [6] in relation to an adjudication under the Building and Construction Industries Security of Payment Act 1999 (NSW): "34 An intention to alter the settled and familiar role of the superior courts must be clearly expressed. But the question is a matter of statutory construction; and in the resolution of such a question, context is, as always, important. The Security of Payment Act contains no privative clause providing in terms that an adjudicator's determination is not to be quashed by way of certiorari on the basis of error of law on the face of the record. But that is not the end of the inquiry. There remains for consideration the question whether, absent an express statement but read as a whole, the Security of Payment Act has that effect. Whether it does depend on examination of the text, context and purpose of the Security of Payment Act. In undertaking that process, '[w]hether and when the decision of an inferior court or other decision-maker should be treated as "final" (in the sense of immune from review for error of law) cannot be determined without regard to a wider statutory and constitutional context'." (Footnotes omitted.) 1. Decisions made by the Director of Proceedings with the Commission are not decisions of any court or tribunal; rather, they are decisions to invoke the jurisdiction of a tribunal. Although the Tribunal is not a judicial body for the purposes of Ch III of the Commonwealth Constitution, it is a body exercising judicial functions. In the present case, it has the power to suspend or cancel the registration of a medical practitioner. In so acting, it is not exercising any domestic or private power based on contract, but a public function of the State of New South Wales. For the Supreme Court to intervene in a manner which effectively prevents the Tribunal from exercising its statutory powers because a judge of the court is of opinion that proceedings should not have been commenced is a troubling proposition. The Director of Proceedings is established as an independent authority outside ministerial control. In that sense, the functions of the office are analogous to those of the Director of Public Prosecutions in relation to criminal proceedings. In that jurisdiction, the position was described by Gaudron and Gummow JJ in Maxwell v The Queen [7] in the following terms: "The power of the Attorney-General and of the Director of Public Prosecutions to enter a nolle prosequi and that of a prosecutor to decline to offer evidence are aspects of what is commonly referred to as 'the prosecutorial discretion'. In earlier times, the discretion was seen as part of the prerogative of the Crown and, thus, as unreviewable by the courts. That approach may not pay sufficient regard to the statutory office of Director of Public Prosecutions which now exists in all States and Territories and in the Commonwealth. Similarly, it may pay insufficient regard to the fact that some discretions are conferred by statute, such as that conferred on the prosecutor by s 394A of the [Crimes Act 1900 (NSW) relating to pleading to alternative offences]. It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process – particularly, its independence and impartiality and the public perception thereof – would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what." 1. The rationale for permitting a prosecutor freedom of action, largely immune from judicial review, but always subject to the control of the court or tribunal in which proceedings are commenced, applies with almost equal force to decisions of the Director of Proceedings. Whether the immunity arises as a legal principle constraining the operation of the supervisory jurisdiction of the Court, or as a matter of statutory construction in the particular jurisdictional context that arises under the National Law and the Health Care Complaints Act, is not an issue which appears to have practical consequences in the present circumstances. 2. To describe the actions of the Director of Proceedings as "largely" immune from judicial review leaves open the possibility that a decision may be found to be invalid if made for a corrupt or improper purpose, or without compliance with mandatory preconditions. Again, it is not necessary to express a firm view as to whether there is a judicial review jurisdiction based on these grounds because there was no allegation of improper purpose or lack of bona fides on the part of the Director of Proceedings. The question of mandatory preconditions requires further explanation. 3. The practitioner noted that there were cases with respect to the discipline of legal practitioners which invoked judicial review principles. That is so, but their importance depends on understanding the principles for which they stand. For example, in Council of the Law Society of New South Wales v Levitt, [8] a case in which a solicitor had sought to set aside resolutions of the Law Society Professional Conduct Committee that proceedings be instituted in the Tribunal, and orders restraining the Law Society from prosecuting proceedings in the Tribunal, I observed that "[a]t no stage so far has the Council taken objection to the form of the proceedings or the orders sought by the respondent". [9] Those observations continued: "[97] How the matter came to that point is not apparent from reading the pleadings, which make no mention of the two provisions in question; nor do they expressly allege any particular error of law. However, counsel for the respondent opened the case before the primary judge on the basis that there was no consideration of s 540 in the reasons given by the Council for its resolution, from which it could be inferred that the matters identified in that section were disregarded and 'if they are mandatory then there is an error of law at least on the face of the record, and we would say further a jurisdictional error'. No objection was taken to the matter being dealt with in this way. However, it is necessary to identify the point taken in this Court in terms of the statutory scheme." (Footnote omitted.) 1. It follows that little can be obtained from a consideration of Levitt. However, a discussion of similar provisions, indicating the basis upon which judicial review was permitted, may be found in Barwick v Law Society of New South Wales. [10] The Court expressly noted that it was not concerned with the merits of the charges against the solicitor and no findings had been made against him. [11] There were two steps in the statutory scheme which the High Court held were preconditions to the filing of proceedings before the Tribunal. One was that the Law Society carry out an investigation into a complaint. The requirement to carry out an investigation was to be construed in a context where the Legal Services Commissioner was given express power to monitor the investigations carried out by a professional council. The joint reasons stated: "52 … One evident purpose of this provision is to enable the Commissioner to supervise the way in which a Council deals with a complaint, and to ensure, for example, that the conduct of a practitioner is treated with appropriate seriousness. 53 Not every departure from the procedures laid down by Pt 10, and, in particular Div 5, will result in a lack of jurisdiction under s 167. However, one of the purposes of the legislation is to bring about the result that, before a matter comes to the Tribunal, it will have been the subject of a complaint which was the subject of an investigation monitored by the Commissioner and considered and dealt with by a Council or the Commissioner under s 155." 1. The second issue concerned the period which had elapsed since the conduct occurred. The statute contained a three-year limitation period, subject to a discretionary power vested in the Commissioner to extend time if thought appropriate. The Law Society proceeded to initiate proceedings in the Tribunal in circumstances where some of the conduct was more than three years old and the Commissioner had not extended time. There was nothing in the statute to warrant the conclusion that the Law Society Council had power to extend time. The joint reasons stated: "50 … it is difficult to accept that it is consistent with the purpose of the legislation that a time-barred complaint could become the subject of a Tribunal hearing. Section 138(2) refers to the power of the Commissioner to accept (or, by implication, to decline to accept) such a complaint. The corollary appears to be that, if not accepted, such a complaint can go nowhere. 51 The jurisdiction of the Tribunal to deal with proceedings is correlative with the duty of the Council or the Commissioner to institute proceedings, in certain circumstances, following a complaint, and what s 155 refers to as the completion of an investigation." 1. This reasoning, which was expressly stated to have nothing to do with the merits of the complaint, turned upon an application of Project Blue Sky principles as to when breach of a statutory requirement entails invalidity of the subsequent conduct. That analysis was in similar terms to the discussion of what might constitute a jurisdictional fact undertaken by Spigelman CJ in Woolworths Ltd v Pallas Newco Pty Ltd [12] . Spigelman CJ observed that a matter is likely to be jurisdictional if it can appropriately be characterised as "preliminary or ancillary to the decision-making process or which is, in some other manner, extrinsic to the facts and matters necessary to be considered in the exercise of [the substantive power conferred]". [13] Obversely, "56 Where issues of fact and degree arise it will often be the case that these are matters which a decision-maker is intended by Parliament to determine and, accordingly, any error is an error within jurisdiction rather than an error going to jurisdiction." 1. The obligation to accord a party procedural fairness is conventionally understood as jurisdictional. Whether or not an opportunity has been accorded to comment on adverse material may be characterised as a matter which is extrinsic or ancillary to the decision-making function which requires an assessment of the adverse material and any response obtained as a result of according a party procedural fairness. 2. In other respects, there is little point in reviewing the statutory schemes for the discipline of legal practitioners. They have varied over the years and have varied from the schemes applicable to medical practitioners. In the same vein, by seeking an analogy with criminal prosecutions, it is not suggested that all forms of prosecution fall within the same legal framework. However, they do have common elements. First, a prosecutor does not make a decision which determines legal rights. While it is true that sequentially each precedes the determination of legal rights by another body exercising judicial power, the opinion of the prosecutor does not bind the ultimate decision-maker, nor is it a factum to which the ultimate decision-maker must, or even may, have regard. The prosecutor's view is not a recommendation to, nor advice to, the authority with decision-making power. The connection is merely temporal. The invocation of the reasoning in Hot Holdings v Creasy [14] was appropriate, but the application should not be accepted. [15] 3. This conclusion is explained by the passage in the joint reasons in Hot Holdings distinguishing two situations, identified as follows: [16] "Thus, for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing. This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue: (1) where the decision under challenge is the ultimate decision in the decision-making process and the question is whether that ultimate decision sufficiently 'affects rights' in a legal sense; (2) where the ultimate decision to be made undoubtedly affects legal rights but the question is whether a decision made at a preliminary or recommendatory stage of the decision-making process sufficiently 'determines' or is connected with that decision." The distinction was then explained in terms dispositive of that case: [17] "If the final decision-making body is not obliged to take the recommendations into account, then certiorari will not lie. … A preliminary decision or recommendation, if it is one to which regard must be paid by the final decision-maker, will have the requisite legal effect upon rights to attract certiorari." (Footnote omitted.) 1. Although in dissent as to the application of the relevant principles, the following pithy statement of Dawson and Toohey JJ is also apposite: [18] "A recommendation cannot of itself affect legal rights because, whatever its content, the decision is one for the Minister. True, it is a precondition to an exercise of power which will do so. But it is the existence of a recommendation, not its content, that is the precondition." 1. Further, there is a sound antipathy to fragmentation of the criminal or disciplinary process, a consideration which properly requires constraint in both cases in considering the extent to which judicial review which may be available. [19] 2. The relevant question for present purposes is whether the Director's decision was insusceptible to judicial review on the ground of manifest unreasonableness. The fact that such a conclusion can only be reached by reviewing the material before the Director, in the light of the policy underlying the paramount consideration of protecting the health and safety of the public, [20] demonstrates the unattractiveness of the exercise of the supervisory jurisdiction on this ground in these circumstances. 3. Indeed, the rationale of immunity may be stronger in the present case than in the case of a criminal prosecution. The Tribunal vested with statutory power to determine whether a health practitioner has been guilty of unsatisfactory professional conduct or professional misconduct is to be constituted by a senior lawyer and two members of the health profession of which the practitioner is a member, and a member of the public. Where the legislature has set up a specialist body of that kind, it is implausible that it intended that a court should be able to determine the circumstances in which matters should be allowed to proceed for the consideration of such a tribunal. 4. Bearing these considerations in mind, in my view the decision of the Director to commence proceedings in the Tribunal was immune from judicial review on the grounds of manifest (or legal) unreasonableness. A more limited conclusion 1. It is, however, possible to dispose of the present proceedings on a more constrained basis. Order 3 purported to quash the decision of the Director to prosecute the practitioner "for professional misconduct". As the primary judge made clear in her reasons for judgment, she was not persuaded that a decision to prosecute for unsatisfactory professional misconduct was legally unreasonable. There are two problems with formulating the order in this way. First, as the relief recognised, in my view correctly, the decision was "to prosecute the complaint against the [practitioner] in the [Tribunal]". The act of commencing proceedings was either valid or it was not. There was no basis in judicial review to say that the decision was valid in so far as it characterised the misconduct in one way, but not in so far as it characterised misconduct in another. The decision was not a curate's egg, partly good and partly bad. The decision was either invalid in whole, but for a specific reason, or it was not invalid. On that basis, order 3 cannot stand. 2. There is a further reason why order 3 cannot stand. The decision of the Director was not open to relief in the nature of certiorari because it had no relevant effect on the legal rights of the practitioner in the way described by the joint reasons in Hot Holdings set out at [48] above. The relevant decision-maker, with power to affect the rights of the practitioner, was the Tribunal. 3. The Director made no finding of fact, nor could she. She had no power to interfere with the registration of the practitioner. Her function was to draw to the attention of the Tribunal matters on the basis of which it might take one of the steps available to it, including steps which would affect the rights of the practitioner. Even a finding of unsatisfactory professional conduct would affect the legal rights of the practitioner, but the Director had no power to make even that finding, let alone a consequential order affecting the registration of the practitioner. 4. Finally, the order may be characterised as based upon a point of pleading. Where there is sufficient basis to strike out so much of the application as alleged professional misconduct, it was open to the Tribunal to take that step on the application of the practitioner. No such application was made. Even if all the foregoing reasoning were considered questionable, in my view the present proceedings should have been dismissed on that basis in the exercise of the Court's discretion. Merits of claims before primary judge 1. In these circumstances, the primary judge lacked jurisdiction to make order 3. The characterisation of the conduct was a matter for the Tribunal; the characterisation in the application did no more than identify the view for which the Director proposed to contend in the Tribunal. This Court equally lacks jurisdiction to consider the justification for that view. While the impugned decision does not appear to be legally unreasonable, it is neither desirable nor appropriate to embark on an exercise which is beyond the jurisdiction of the Court, against the possibility that that view may be in error. Conclusions 1. The proper course is to allow the Commission's appeal and set aside the judgment below. That conclusion may be reflected in the following orders: 1. Grant the applicant Commission leave to appeal from the judgment in the Common Law Division delivered on 16 December 2021. 2. Allow the appeal and set aside orders 3, 4 and 5 made in the Common Law Division on 16 December 2021. 3. In place thereof make the following orders: 1. Dismiss the amended summons. 2. Order that the plaintiff pay the first defendant's costs of the proceedings in the Division. 1. Order that the respondent pay the Commission's costs in this Court. ********** Endnotes 1. National Law, Sch 5D, cl 11. 2. Hill v Health Care Complaints Commission [2021] NSWSC 1645 ("Hill"). 3. See Uniform Civil Procedure Rules 2005 (NSW), r 13.4; Batistatos v Roads and Trafic Authority of NSW (2006) 226 CLR 256; [2006] HCA 27 at [9]-[16] (Gleeson CJ, Gummow, Hayne and Crennan JJ). 4. The King v Hickman; Ex parte Fox (1945) 70 CLR 598 at 615-616 (Dixon J); [1945] HCA 53; and, in the State sphere Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; [2003] HCA 2 at [17], [19] (Gleeson CJ), [71]-[73] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). 5. (1998) 194 CLR 355; [1998] HCA 28 at [93] (McHugh, Gummow, Kirby and Hayne JJ). 6. (2018) 264 CLR 1; [2018] HCA 4. 7. (1996) 184 CLR 501 at 534; [1996] HCA 46. 8. [2018] NSWCA 247. 9. Levitt at [94]. 10. [2000] HCA 2; 74 ALJR 419. 11. Barwick at [7] (Gleeson CJ, Gaudron and McHugh JJ). 12. [2004] NSWCA 422. 13. Woolworths v Pallas Newco at [49]-[50]. 14. (1996) 185 CLR 149 at 159 (Brennan CJ, Gaudron and Gummow JJ); [1996] HCA 44. 15. Hill at [193]. 16. Hot Holdings at 159. 17. Hot Holdings at 165. 18. Hot Holdings at 179. 19. Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 at 321G-322D (Moffitt P) 20. National Law, s 3A. 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: 15 December 2022