Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kaye v Health Care Complaints Commission [2021] NSWCATOD 228 Hearing dates: Hearing on the papers Date of orders: 12 March 2021 Decision date: 12 March 2021 Jurisdiction: Occupational Division Before: Naida Isenberg, Senior Member Decision: The application is dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013. Catchwords: EXTENSION OF TIME – principles – where substantive matter relates to Tribunal's power to set aside decision where no opportunity for Applicant to adequately put case - no prospect of success in substantive matter Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Regulation 2013 Health Care Complaints Act 1993 Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Kaye v Health Care Complaints Commission [2017] NSWCATOD 157 Kaye v Health Care Complaints Commission (No 2) [2018] NSWCATOD 36 Kaye v Health Care Complaints Commission [2018] NSWCATAP 146 Li v Ward Building Construction Pty Ltd [2016] NSWCATAP 104 XDX [2014] NSWCATGD 38 Category: Principal judgment Parties: David Kaye (Applicant) Health Care Complaints Commission (Respondent) Representation: Solicitors: Applicant: self-represented Respondent: File Number(s): 2016/378460 Publication restriction: nil REASONS FOR DECISION 1. The Applicant, David Kaye has brought proceedings in the Tribunal against the Health Care Complaints Commission (Commission) under cl 9 of the Civil and Administrative Tribunal Regulation 2013 (Regulation). 2. The Commission applied under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (the Act) to have Mr Kaye's present application dismissed. Background 1. Following an investigation into a complaint made by a member of the public, the Commission decided to prohibit Mr Kaye from providing mental health services for a period of six months and, after the expiration of that period, to prohibit him from providing mental health services unless he obtained a Level 5 qualification in counselling. In addition, the Commission issued a public statement under the Health Care Complaints Act 1993 (HCC Act). Section 41A(2)(b) permits the Commission to cause a public statement to be issued identifying and giving warnings or information about, a health practitioner found to, among other things, have breached the Code of Conduct for unregistered health practitioners (Code). 2. Mr Kaye applied to the Tribunal for review of that decision. After conducting its review the Tribunal found that Mr Kaye had breached the Code and posed a risk to the health and safety of members of the public: Kaye v Health Care Complaints Commission [2017] NSWCATOD 157. In its Reasons for Decision, the Tribunal expressed a preliminary view that the orders made by the Commission were insufficient to protect the health and safety of the public: at [191]. After handing down its Decision, the parties were invited to provide written submissions about whether a "prohibition order" should be made under s 41A(2) of the HCC Act and, if so, what form of order should be made. 3. Following a hearing on 14 February 2018, the Tribunal made Orders on 12 March 2018, in Kaye v Health Care Complaints Commission (No 2) [2018] NSWCATOD 36 (Kaye No 2), as follows: 1. The Respondent's decision made on 06 October 2016, made under the Health Care Complaints Act 1993 (NSW), to prohibit the applicant from providing any counselling of any description and any other mental health services after 6 March 2017, is varied. 2. In substitution for that part of the decision prohibiting the applicant from providing after 6 March 2017, any counselling of any description and any other mental health services until he satisfies the Respondent that he has successfully completed a Level 5 qualification in counselling (ie a Diploma of Counselling) from an accredited institution, the following decision is made. 3. Pursuant to s 41A(2) of the Health Care Complaints Act 1993 (NSW), the applicant is permanently prohibited from providing any "health service" in either a paid or voluntary capacity. 4. Note: For the purpose of this order "health service" carries the meaning given by s 4 of the Health Care Complaints Act, and includes but is not limited to the following types of health services: mental health counselling, hypnotherapy, psychotherapy and providing medico-legal opinion or advice relating to personal injury or similar claims. 1. Mr Kaye appealed that decision and the Orders made. On 7 June 2018, in Kaye v Health Care Complaints Commission [2018] NSWCATAP 146 (Kaye Appeal) the Appeal Panel, following a hearing on 17 May 2018, dismissed the Applicant's appeal against the Decision and Orders in Kaye (No 2). CONSIDERATION 1. Mr Kaye seeks to have the Orders made in Kaye (No 2) and in the Kaye Appeal set aside. 2. Clause 9 of the Regulation provides: (1) 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. 1. Subclause 9(3) of the Regulation requires an application under cl 9 to be made within seven days after the relevant decision was made, unless the Tribunal grants an extension under s 41 of the Act. Mr Kaye did not make his application within seven days after the relevant decisions. The Commission opposed an extension of time. Extension of time 1. The Tribunal has the power under s 41 of the CAT Act to grant an extension of time in which to make an application. In exercising its discretion, the Tribunal must seek to give effect to the guiding principles to facilitate the just, quick and cheap resolution of the real issues in the proceeding: s 36 of the CAT Act. The Respondent submitted that the Tribunal, having regard to the Tribunal's guiding principles, should decline to grant an extension of time. 2. Guidance in relation to the factors the Tribunal is to take into account when considering whether to exercise its discretion to grant an extension was provided by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, and these are considered below. Would strict compliance with the rules be unjust to the Applicant? 1. The Respondent submitted that strict compliance with the statutory timeframe does not work an injustice upon the Applicant. I do not think it is possible to answer this question without some evaluation of the merits of the substantive application, because, clearly, if the application had merit, then requiring strict adherence to the statutory timeframe may be unjust to the Applicant. Is there prejudice to the Respondent if the extension of time is granted? 1. The Commission submitted that it is prejudiced by the delay, as Mr Kaye now states in his submission of 19 January 2021 that he seeks to cross-examine several persons about, presumably, events from many years ago. At least some of those persons were said to be Commission employees. I observe in respect of the proposed cross-examination by Mr Kaye, that s 99A(2) of the Health Care Complaints Act 1993 states that a person, including Commission employees, may not be compelled in any legal proceedings to give evidence about information obtained in exercising a function under the Act. What was the length of the delay? 1. Mr Kaye contended that he sent an application to the Tribunal in late 2019. The Tribunal's records have the current application being filed on 27 November 2020. Similarly, the Commission was not aware of such an application having been filed. Because the Tribunal has no record of an application having been filed and the Commission was not served with a copy of such an application, I consider it unlikely that an application was filed in 2019 as Mr Kaye claimed. 2. Even if an application had been made in late 2019, it would still be out of time and require the Tribunal to consider an extension of time. What was the reason for the delay? 1. Despite his very substantial submissions, I could find no adequate explanation for why Mr Kaye waited for, at best over one year (if he filed his application in 2019) or over 2 years (if he filed his application in November 2020) to seek his remedy. He referred to a motor vehicle accident on 29 August 2015 as his reason for relying on his then solicitor and counsel. Even if Mr Kaye was not, as he submitted, informed by his legal advisers of a "time restriction" for applying to set aside the relevant orders, this does not adequately explain the delay in seeking a remedy in the intervening period. What are the Applicant's prospects of success? 1. Pursuant to cl 9(1) of the Regulation, the Tribunal may only order that a decision be set aside or varied in two very limited circumstances: 1. if both parties consent to the making of the order to set aside or vary the decision. As the Commission does not consent to Mr Kaye's application, cl 9(1)(a) is not relevant in this matter. 2. if the decisions were made in the absence of a party and the Tribunal can be satisfied that that absence has resulted in him not being able to adequately put his case. 1. In Li v Ward Building Construction Pty Ltd [2016] NSWCATAP 104 at [7] the Appeal Panel held: 7. The reference to a decision being made in the absence of a party in clause 9(1)(b) of the NCAT Regulation, is a reference to a decision being made at the end of a hearing where one party has not attended. It is not a reference to the Tribunal reserving its decision and giving a decision and written reasons later. That is because reserved decisions are made in private and no party will ever be present at the time the decision is made. 1. Mr Kaye submitted that he had "not attend(ed) the court on the second day of the hearing...", referring, it appears, to the second hearing day on 2 May 2017: see Kaye (No 2), at [5]: 5. At the commencement of the hearing on 14 February 2018, Mr Kaye applied for an adjournment. He claimed that the day before the hearing he had been informed that his counsel, Mr Cohen, was unable to appear as he was acting in another matter. In addition, Mr Kaye claimed that he had attempted without success to engage replacement counsel. Mr Cohen had appeared for Mr Kaye on the first but not the second day of the hearing (2 May 2017). In addition, he prepared written submissions on behalf of Mr Kaye addressing the issue of whether the Tribunal should make a prohibition order: see submissions filed by Mr Kaye on 19 January 2018. 1. As the decision sets out at [5] - [25], the Tribunal formed the view that Mr Kaye was present at the hearing. Furthermore, his counsel had prepared written submissions. The Tribunal stated at [24]: 24. Section 38(5)(c) of the NCAT Act requires us to take such measures as are reasonably practicable to ensure that Mr Kaye has a reasonable opportunity to be heard or otherwise have his submissions considered in the proceedings. It does not require that he be provided with every opportunity to be heard. As noted above, Mr Kaye is familiar with the issues now to be determined, he has the benefit of written submissions prepared by counsel, he is squarely on notice that the Commission seeks a permanent prohibition order, and, he does not claim and nor is there any evidence to suggest that because of a disability or some other disabling factor he is unable to represent himself in these proceedings (original emphasis) 1. Mr Kaye was also legally represented at the Kaye Appeal hearing: see Kaye Appeal at [23]. His counsel appeared by phone at the hearing, made short oral submissions, and filed written submissions. 2. There is nothing in Mr Kaye's voluminous application and supporting materials to suggest that, at the relevant time, he or his counsel were not able to adequately put forward his case, and, again, this is reflected in the decisions. 3. Subclause 9(1)(b) requires both the absence of a party and for the Tribunal to be satisfied that, as a result of that absence, the party's case was not adequately put. Consequently, Mr Kaye was not only present and/or legally represented as a party in the hearings, but also his case was clearly adequately argued. The requirement under cl 9(1)(b) of the Regulation has not been met; Mr Kaye was either present and/or legally represented as a party for each of the hearings and his case was adequately put. 4. Further, cl 9(5) of the Regulation states that an application may not be made under cl 9 if, relevantly per cl 9(5)(a), "an internal appeal or appeal to a court against the decision has been lodged or determined...". The Kaye Appeal is an "internal appeal," pursuant to s 32 of the Act. Consequently, the Tribunal cannot deal with Mr Kaye's application in respect of Kaye (No 2) under cl 9 of the Regulation. 5. The Applicant also relied on s 53 of the Act in relation to amendments and irregularities. Section 53(1) refers to the Tribunal's power to "make any amendments to any document filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice." (Tribunal's emphasis) The Tribunal's Decision and Orders are not documents "filed in connection with" Tribunal proceedings. Consequently, the provision does not apply. 6. The Applicant submitted, in particular, that s 53(4) of the Act permits the Tribunal to set aside its proceedings or a decision in the proceedings. That power however specifically relates to dealing with an irregularity arising from non-compliance in relation to the commencement or conduct of proceedings, and is not a power to set aside the proceedings or a decision at large. No irregularity, "in relation to the commencement or conduct of the proceedings," has been identified. In XDX [2014] NSWCATGD 38 the Tribunal stated at [28]: 28. Section 53 focuses on non-compliance with provisions and procedural rules that create any irregularity. There is no definition of "irregularity" in the CAT Act but the plain English meaning, as set out in the Oxford English Dictionary, connotes "not in conformity with [a] rule or principle " Section 53(3) refers to "the provisions of the Act and procedural rules". While on its face this section may encompass a wide range of provisions and rules, including those provisions directed to procedural fairness, to interpret the effect of s 53(4) so broadly would unnecessarily trespass on the rights of appeal established in Part 6 of the CAT Act. Section 53 is a beneficial but practical provision intended to give effect to documents and decisions affected by technical procedural defects and to give the Tribunal discretion to correct such defects. This is clear from the language, heading and context of s 53 when read as a whole… (emphasis added) 1. The Tribunal in XDX at [19] - [31] set out the circumstances in which decisions should be set aside or varied under s 53. In doing so it commented at [29]: 29. Even if I am wrong on this and my interpretation of the provision is unduly restrictive, s 53(4) gives the Tribunal discretion to set aside, wholly or partly, proceedings or a decision in the proceedings. Having regard to the remedies available to parties under Part 6 and regulation 9, in my view it would not be appropriate for the discretion under s 53(4) to be exercised in circumstances where these alternative remedies could be more properly utilised. To exercise the discretion such circumstances would defeat the provisions of Part 6 and regulation 9 and undermine the objects of the CAT Act. Parties are entitled to finality in the determination of their disputes. Where there has been a hearing conducted and a decision is made by Tribunal, the decision should stand unless challenged on appeal in accordance with the provisions of the CAT Act or under the terms of regulation 9. (emphasis added) 1. In summary therefore, s 53(4) does not provide a basis for Mr Kaye to have the Decisions or Orders of the Tribunal set aside or varied. Conclusion 1. I find that, were the extension of time granted, the outcome for the Applicant cannot be favourable, for the reasons I have discussed above. Consequently, there is no utility in allowing the extension of time. The application is therefore dismissed under s 55(1)(b) of the Act. DECISION 1. The application is dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013. 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: 13 March 2023